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.
This "Platform Agreement" incorporates additional agreements, terms, and policies, including Thatch Privacy Policy ("Privacy Policy"), which will depend on the type of account you have with Thatch—for example, if you are an employer or an employee. You may also have access to third-party products, services, or applications that require consent to separate terms or conditions between you and such third party.
You must be at least 18 years old to consent to this Platform Agreement and open an account.
We have tried to make this Platform Agreement easy to understand but please contact us if you have any questions. There are a few specific provisions for you to note:
Your use of the services is subject to your acceptance of all the terms and conditions of this Platform Agreement. If you do not agree to all the terms and conditions of this Platform Agreement, you may not access or use any products, services, or applications provided by Thatch or others under this Platform Agreement.
This Platform Agreement includes terms that impact your access to services, limit our liability, waive class actions, and require you to settle disputes through arbitration. Except as described below, you agree that disputes between you and Thatch will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.
Thatch is not a custodian, trustee, or fiduciary for your Healthcare Payments Accounts. Other parties, including partner banks, provide these services that you can access through your Thatch dashboard.
Thatch does not offer medical advice or treatment. Only medical professionals can advise and determine the right courses of treatment and provide safe, appropriate, and effective treatments.
In the case of a medical emergency, immediately seek treatment at your nearest emergency room or call 911.
The Parties agree to the following:
Thatch provides healthcare-related products and services, financial tools, and other services that help employers, their employees, and brokers manage healthcare payment options through an online portal (each a "Thatch Account"). Below are terms that we use throughout this Platform Agreement and other agreements with Thatch:
"Employer" means a business entity that employs Members and provides access to healthcare-related benefits that may include health savings accounts or reimbursement arrangements. An "Employer Account" is a Thatch Account used by an Employer allowing it to add or remove Members and perform other administrative functions such as setting Member allowances or updating personal information. Use of an Employer Account is also subject to additional terms included as Appendix A: Employer Terms ("Employer Terms").
"Member" means the natural person that is eligible to receive healthcare-related benefits or otherwise has access to a Thatch Account, such as a former employee of an Employer. Dependents are not Members. A "Member Account" is a Thatch Account used by a Member for managing allowances and approved healthcare-related spend, modifying sources of payment, selecting Insurance Plans with the help of Brokers, and managing other information, including personal or contact information. Use of a Member Account is also subject to additional terms included as Appendix B: Member Terms ("Member Terms").
"Broker" means the person or entity that may advise and arrange the purchase of an Insurance Plan on behalf of a Member. A "Broker Account" is a Thatch Account used by a Broker for assisting Members in selecting and managing Insurance Plans. Use of a Broker Account is also subject to additional terms included as Broker Terms ("Broker Terms").
"Fees" means any platform, transactional costs, and expenses that you incur through use of your Thatch Account and services provided under this Platform Agreement.
"Taxes" means any state or federal taxes imposed by any governmental authority.
"Financial Account" means the bank or other financial account used for funding payment of Fees and other costs. For Employers, this includes accounts used to fund Healthcare Payments Accounts for Members; and for Members, this includes accounts used to cover costs or expenses for transactions not coverable by funds in Healthcare Payments Accounts, where available.
"Healthcare Notices" are documents furnished to Members in the Thatch Account dashboard or by email that define contribution, spending, or reimbursement limits as applicable under the specific Healthcare Payments Accounts, including plan documents, communications, and descriptions of Member eligibility and benefits.
"Healthcare Payments Accounts" are health savings accounts or reimbursement arrangements, including HSAs or ICHRAs, that allow Members and Dependents to pay for healthcare-related expenses, including insurance premiums, and to purchase eligible products and services. Healthcare Payments Accounts are not Insurance Plans but may be used by Members to pay for Insurance Plans where permitted. A "Dependent" may be a spouse, domestic partner, child, or other individual that qualifies as a dependent under the applicable Insurance Plans.
"HSA" is a Health Savings Account—a financial account that allows Members to set aside and manage tax-free funds to pay for qualified expenses, where such funds may be contributed by an Employer or Member through payroll contribution or other means. Thatch is not a custodian or trustee of HSAs but works with qualified bank partners that serve as the HSA custodian. Use of HSAs are subject to the Thatch Health Consumer Deposit Account Agreement ("Deposit Agreement")
"ICHRA" is an Individual Coverage Health Reimbursement Arrangement—an employer-funded health benefit program that reimburses or pays for qualifying expenses and insurance premiums for Members or groups of Members up to amounts established by the Employer. The "ICHRA Allowance" is the amount of funds reimbursable under an ICHRA for Members.
"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). The "Carrier" is the insurance provider or carrier that offers or maintains insurance policies. Without limiting the forgoing but for clarification, Healthcare Payments Accounts are not Insurance Plans and Thatch is not a Carrier.
"Marketplace" is the web page hosted by Thatch with Third-Party Offerings available for purchase by Members through our partners.
"Thatch Card" is a Visa-branded debit or credit card issued to Members allowing them to pay for healthcare-related expenses that is managed through Members' Thatch Accounts. Thatch is not a payment card issuer but works with a bank partner to provide the Thatch Card. Use of the Thatch Card is subject to the Cardholder Terms and Conditions ("Card Agreement").
"Third-Party Offerings" are any products or services provided by parties other than Thatch including Insurance Plans and products or services provided through the Marketplace.
"Services" means all products or services provided by Thatch or our partners including Third-Party Offerings; and "Content" means any data, images, videos, or other informational media provided through the Services.
Before accessing Services and your Thatch Account dashboard, you must create an online profile. Once created, you can use your Thatch Account to view and manage personal and contact information; maintain usernames, passwords, or other identifiers used to authenticate you ("Credentials"); connect Financial Accounts; and access Services.
Thatch and its financial partners may request additional information from you to fulfill certain due diligence and identity verification requirements and may engage third-party service providers to verify such information. We may provide you preliminary access to your Thatch Account prior to validating all the information, however your Thatch Account is only approved after we validate your information and provide notice to you.
You may change information at any time through your Thatch Account, and continued access to your Thatch Account and Services depends on this information being accurate and current.
We may use the contact information that you provide, including your phone number, to communicate details about your Thatch Account, including information about payments, Insurance Plan enrollments, and other transactions. Any phone calls or text messages we send are subject to Section 11 (Electronic Signatures and Communications).
Thatch Accounts for Employers If you are an Employer, your Employer Account allows you to access and manage (a) your business information; (b) usernames, passwords, and details used to authenticate Members and Authorized Persons (defined below); (c) your Financial Accounts; and (d) other administrative Services. Employer Accounts allow you to designate people authorized to act on behalf of the Employer (each an "Authorized Person"), each with separate Credentials. Additional terms governing your Employer Account are included in the Employer Terms.
Thatch Accounts for Members If you are a Member, your Member Account allows you to access and manage (a) your personal and contact information, and Credentials; (b) your Healthcare Payment Accounts and Thatch Card; (c) your Financial Accounts; (d) information regarding your Insurance Plans, including managing Dependents; (e) an individual or entity designated as Broker to act on your behalf; and (f) other administrative Services. Additional terms governing your Member Account are included in the Member Terms.
Thatch Accounts for Brokers If you are a Broker, your Broker Account allows you to access and manage (a) your brokerage information; (b) usernames, passwords, or other identifiers used by persons authorized to act on your behalf; (c) Insurance Plan information for Members that you work with; and (d) other administrative Services. Additional terms governing your Broker Account are included in the Broker Terms.
You agree to keep all information in your Thatch Account current, including contact information and Financial Accounts. For Employers, this includes ensuring that new employees are added and former employees are removed from your Thatch Account in a timely manner; and for Members, this includes keeping your Dependents and payment details up to date.
You must keep your Credentials secure. Only you, or those who are authorized to act on your behalf, may access your Thatch Account. You are responsible for any actions taken or information provided using your Credentials or by people authorized to act on your behalf. While we may offer tools to help keep your Credentials and Thatch Account secure, it is up to you to take the steps that you believe are necessary to secure your Thatch Account, which may include use of tools or systems not provided by Thatch (such as a password manager).
Employers select options for Healthcare Payments Accounts including setting contribution amounts and reimbursement limits under HSAs or ICHRAs, as applicable. The options selected are reflected in Healthcare Notices made available through Member Accounts. Employers are responsible for ensuring that Members receive required Healthcare Notices and that they accurately reflect Members' elections.
Healthcare Payments Accounts are federally regulated through a series of laws, regulations, orders, and rules promulgated by the Internal Revenue Service (IRS) and the Department of Health and Human Services (HHS) including the Consolidated Omnibus Budget Reconciliation Act (COBRA) (collectively, "Applicable Rules"). Thatch may provide tools and information to help you comply with your obligations but you are responsible for researching and selecting contribution amounts or reimbursement limits and ensuring that funds are used appropriately.
Members can select Insurance Plans specific to them through their Member Accounts and are responsible for selecting the Insurance Plans that are appropriate for their needs. Insurance Plans may be purchased through Member Accounts with the help of a Broker including Thatch Health Insurance Services LLC, a Thatch affiliate.
Brokers may receive referral fees or commissions for placement of Insurance Plans for Members. While Thatch makes multiple Insurance Plans available for purchase through the Member Account, the options provided through the Member Account are not exhaustive. In some cases, Members may find other Insurance Plans that are more appropriate for their needs sold directly from Carriers or a health insurance marketplace. Members can use their Thatch Cards to purchase these Insurance Plans outside of the Thatch platform.
When employment with an Employer is terminated, the Member (a) may continue coverage under an Insurance Plan at their own expense; (b) will continue to have access to any funds that have been contributed to an HSA, if applicable; and (c) may have limited access to unused ICHRA Allowance if permitted under Applicable Rules and provided in the Healthcare Notices. In addition, Members may have limited and conditional access to ICHRA Allowances subject to COBRA and subject to payment of premiums and applicable fees.
Thatch provides a platform for you to manage and make payments to and from Healthcare Payments Accounts. However, Employers are responsible for commitments to fund Healthcare Payments Accounts made to Members and Members are responsible for costs associated with purchasing Insurance Plans or paying for other expenses. Additional details are included in the Employer Terms and Member Terms.
Except as expressly agreed upon writing by you and Thatch, Fees for use of Thatch Accounts are specified on our pricing page, which may be updated upon 30 days' notice, which may be provided through the dashboard or on our website.
You authorize Thatch to debit all amounts owed or committed under this Platform Agreement from Financial Accounts including, as applicable, (a) contributions to Healthcare Payments Accounts, (b) amounts owed to Employers or Members, (b) amounts paid on your or Members' behalf to third parties such as Carriers or Brokers, (c) Fees and Taxes, and (d) amounts for Advances or Reserves (as defined below). Where debits from Financial Accounts are unsuccessful for any reason, including insufficient funds, we may also attempt to re-debit the 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 (e) the Authorized Persons is authorized to permit Thatch to initiate debits from Financial Accounts and (f) Thatch is authorized to debit from all amounts owed or committed under this Platform Agreement from Financial Accounts.
This debit authorization from your Financial Accounts will remain in full force and effect until all amounts owed or committed under this Platform Agreement 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.
Where you initiate or commit to payments but where funds are not immediately available, Thatch may pay third parties on your behalf, including payments to Carriers (each an "Advance"). 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 funds to be held as a security interest against existing or potential commitments to Thatch or third parties including, as applicable, Carriers or Members, as a condition of continued use of Services provided by Thatch (a "Reserve"). Where required, we will determine and communicate the amount of the Reserve in advance of debiting your Financial Account. Reserves are held with one of Thatch's financial partners on your behalf and are maintained in a custodial account that is separate from Thatch's operating accounts. Amounts held in a Reserve may be used to satisfy any of your financial obligations under this Platform Agreement.
While we may provide general guidance related to tax implications of Healthcare Payments Accounts, specifically HSAs or ICHRAs, we do not provide tax or legal advice. You are solely responsible for payment of Taxes. Any Fees owed to us are exclusive of Taxes that you may owe.
Members are issued one or more Thatch Card after opening a Thatch Account. Each Thatch Card allows Members to pay for healthcare-related expenses such as Insurance Plan premiums, copays, and other qualified expenses including those made through the Thatch Marketplace. When and how the Thatch Card can be used by Members for healthcare-related expenses depends on the specifics of the Healthcare Payments Accounts and on regulatory limitations. Configuration and Member election will determinate which expenses are qualified—available for tax-free treatment—under Applicable Rules. Purchases made with the Thatch Card or through a Member Account are subject to the conditions and limits in the applicable Healthcare Notices and use of the Thatch Card is subject to the Card Agreement.
Members have access to discover healthcare-related Third-Party Offerings through the Marketplace and purchases can be made through separate merchant websites. Thatch does not control and is not responsible for the content on merchants' websites. We do not recommend or require specific products or services but may make discounts or other benefits available through the Marketplace. Thatch may receive a fee from merchants when purchases are initiated on the Marketplace.Purchases, fulfilments, returns, and refunds of any products or services made through the Marketplace are managed exclusively by the merchants.
We provide automated and personal assistance that may include computer-assisted or -generated responses to questions you pose to us regarding use of your Thatch Account or Services ("Support"). You can also contact us at any time at support@thatch.ai or as may be available in your Thatch Account.
While we may provide limited assistance in navigating basic insurance questions, 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, payment to Carriers, and decisions related to payment of medical expenses.
Thatch does not offer any 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 medical decisions or actions, including choices to elect or waive treatment.
Services provided by Thatch are no 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.
When and how to close your Thatch Account will depend on the type of Thatch Account you maintain with details included in the Employer Terms, Member Terms, and Broker Terms, respectively. When you close your Thatch Account you are still responsible for all amounts owed under this Platform Agreement, which will be debited from your Financial Account.
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. We do not use or disclose PHI to third parties except as directed or 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 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 after your Thatch Account is closed.
Thatch owns and retains all rights to its intellectual property including patents, copyrights, trade or service marks, and trade secrets that may be provided as part of Services and Content or in communications with us. You may only use Thatch's intellectual property in the context of using Services and Content as permitted by this Platform Agreement. Other use is prohibited and no right of use or license to use Thatch intellectual property for other purposes is provided under this Platform Agreement.
This Platform Agreement will remain in effect from the Effective Date until it is terminated by you or us as provided in this section.
You may terminate this Platform Agreement at any time by closing your Thatch Account, settling any outstanding financial obligations, and ceasing to use Services. For Member Accounts, you will lose access to your Thatch Card and will be responsible for acquiring and paying for an Insurance Plan—Thatch will no longer provide payment services for your Insurance Plan. For Employer Accounts, Members will no longer have access to benefits provided through Thatch, which may include ICHRA Allowances, and you will be solely responsible for acquiring alternate benefits as required by law. Additional information on termination is provided in the Employer Terms and Member Terms.
We may terminate this Platform Agreement upon 90 days' notice to you except where required to terminate soon by law or legal order. In addition, either you or we may terminate this Platform Agreement if the other Party has breached this Platform 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 will remain effective even after termination of this Platform Agreement: 4 (Payments and Taxes), 5 (Thatch Marketplace), 6 (Support Services), 7 (Closing your Thatch Account), 8 (Privacy and Use of Data), 9 (Intellectual Property), 10.B (Termination), 11 (Electronic Signatures and Communications), 12 (Arbitration), 13.C (Limits on Our Liability) 13.D (Indemnity), 14 (Notices), 15 (Additional Legal Terms), and any provisions or conditions that must survive to fulfill their essential purpose.
You agree to use electronic signatures to consent to agreements or amendments; to approve purchases, billing, or debiting Financial Accounts or Reserves; to receive tax forms and other reporting documentation related to the Services; and for other transactional purposes related to this Platform Agreement or the Services. You also acknowledge that electronic signatures are subject to the E-SIGN Act.
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 through use of automated phone 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 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 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 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.
BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES WITH THATCH IN COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE. PLEASE READ THIS SECTION CAREFULLY.
For efficiency and to reduce costs of a dispute, you and Thatch agree that any legal or equitable claim, dispute, action, or proceedings arising from or related to this Platform Agreement, included incorporated documents, or your use of Services ("Dispute") will be resolved to the fullest extent permitted by applicable law through the binding arbitration described below. This applies to all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, even if the Dispute arises after the termination of this Platform Agreement. 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.
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 ("Notice of Dispute") in the manner provided in Section 14 (Notices). You and Thatch will attempt to resolve any Dispute through informal good faith negotiation within 45 days from the date the Notice of Dispute is sent. After this 45-day period has passed, 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.
The negotiations mentioned in the previous subsection are a precondition of filing for arbitration and, where such negotiations fail to resolve the Dispute, it will be finally decided through arbitration. Arbitration will apply the Mediation Rules of Judicial Arbitration and Mediation Services, Inc. ("JAMS") and, except as provided for below, will take place in San Francisco, California.
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 this Platform Agreement. The arbitrator may award declaratory or injunctive relief only to you or Thatch individually, and only to the extent required to satisfy the Dispute.
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 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 this Platform Agreement, subject to the powers granted under the applicable JAMS rules. Any court with jurisdiction over the Parties may enforce the arbitrator's award.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION PROVISION MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE PERSON OR ENTITY CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON OR ENTITY. CLASS ACTIONS AND CLASS ARBITRATIONS ARE NOT PERMITTED. The arbitrator may not consolidate arbitrations unless all Parties agree. Where a final judicial decision finds that this section is unenforceable as to a particular claim or a particular request for relief, the Parties agree that only that specific request for relief will be decided by a court and will be concluded after all other claims and requests for relief are arbitrated. If this waiver of class or consolidated actions is deemed invalid or unenforceable, all claims and Disputes will be resolved in a court as set forth in subsection 15.E (Disputes and Governing Law).
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 that Party's 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.
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.
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.
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 14 (Notices). 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.
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, then the foregoing arbitration provisions will not apply to either Party, and both you and we agree that any judicial proceeding will be brought in the state or federal courts located in San Francisco County, California.
If this prohibition against class actions and class arbitrations is found to be unenforceable, then the preceding language in this section will be null and void.
The Parties respectively warrant that you and we have all rights and authority to enter into this Platform Agreement and perform our respective obligations.
Except where expressly stated in this Platform Agreement, 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 or warranties concerning the Services or Content. The Thatch Parties are not responsible to you or liable for the accuracy or ownership of any products or services provided by or on behalf of third parties (including Insurance Plans or products purchased through the Marketplace) ("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.
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.
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; OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL.
You agree to indemnify and hold the Thatch Parties 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) action taken by others using your Credentials or made on your behalf, (c) our inability to collect amounts owed to us including for Advances, or (d) your violation of this Platform 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.
Any notice, demand, waiver, and other communications regarding this Platform 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., 353 Kearny St., San Francisco, CA 94108 with a copy sent to notices@thatch.ai. Notice is effective only when received and is subject to all the requirements of this section.
No amendment to or modification of this Platform Agreement is effective unless it is in writing and signed and authorized by both Parties. No waiver of rights by a Party is effective unless explicitly set forth in writing and signed by the waiving Party. Notwithstanding the foregoing, we may update the Privacy Policy by posting it to our website.
Any delay in or failure to exercise rights or remedies arising from this Platform Agreement does not constitute waiver of those rights. Likewise, any exercise or partial exercise of such right or remedy does not preclude future exercises.
Neither Party may assign its rights or delegate its obligations under this Platform 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 Platform Agreement binds and inures to the benefit of the Parties and their respective permitted successors and assigns.
If a provision of this Platform Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Platform 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 this Platform Agreement to reflect the original intent of the Parties as closely as possible.
This Platform Agreement will control in the event of any conflict between this Platform Agreement and any other documents exchanged or executed by the Parties. It 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 14 (Additional Legal Terms) and this subsection refers to 14.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.
Subject to Section 12 (Arbitration), all Disputes arising out of or related to this Platform 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.
This Platform 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.
You and we agree that injunctive relief provides the best remedy if either Party breaches Section 11 (Arbitration) or you breach Section 8 (Intellectual Property) because (i) it would be difficult to determine the damages resulting from such breach and (ii) 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.
This Platform Agreement—including all incorporated terms, conditions, and policies applicable to your use—constitutes the entire understanding of the Parties with respect to subject matter described herein. It supersedes all prior and contemporaneous understandings and agreements between you and us regarding the Services.
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.
These Thatch Employer Terms ("Employer Terms") provide additional terms for use of Employer Accounts as described in the Platform Agreement between you and Thatch.
These Employer Terms are an addendum to the Platform Agreement and, together, form the agreement governing your use of Employer Accounts. Any terms used but not defined in Employer Terms have the meaning provided in the Platform Agreement.
An Employer Account allows you to control and manage how you contribute to Members' Healthcare Payments Accounts, as well as add and remove employees or designate Authorized Persons to help you manage benefits. The sections below provide more context on the specific responsibilities you have as an Employer, including responsibility for all actions taken by Authorized Persons on your behalf.
Your Employer Account allows you to select options for Healthcare Payments Accounts that include establishing contribution amounts and reimbursement limits for Members under HSAs or ICHRAs, as applicable. Options include selecting the amount that you wish to contribute, subject to legal minimums or maximums, which may be segmented by types or classes of Members.
You are responsible for researching and selecting contribution amounts or reimbursement limits available to Members that are appropriate for your business and comply with Applicable Rules.
Healthcare Notices are generated for Members based on the options you select and will be revised when you make changes to the options available to Members. Members have access to Healthcare Notices through Members Accounts however Applicable Rules require you to ensure that they have received and reviewed Healthcare Notices and that they accurately reflect Members' elections.
Once options are selected, you may select the Employees that are eligible for Healthcare Payments Accounts, manage contribution amounts or reimbursement limits, review Healthcare Notices, and take other actions to manage Healthcare Payments Accounts through your Employer Account.
Where access to HSAs is enabled, funds may be made available through employer contributions, employee contributions from payroll, or separate employee contributions. Any changes to HSA contributions will be subject to Applicable Rules.
Where access to ICHRAs is enabled, funds are made available to Members through reimbursements to Members for qualified payments, or through direct payments from you or Thatch to providers of healthcare-related expenses on behalf of Members. You may establish ICHRA Allowances based on various groups of employees (for example, employees based in one state or another). You may select these classes at the time you establish ICHRA offerings and may change them through your Employer Account. You may also select whether and how unused portions of ICHRA Allowances may roll over from month-to-month or year-to-year. Any changes to ICHRA reimbursements or classes will be subject to Applicable Rules.
Upon termination, Members will have access to HSAs and, at their election, Insurance Plans. Depending on the options selected when configuring the ICHRA plan, unused ICHRA Allowances may also be available.
Applicable Rules, including COBRA, may require that you provide continuation of health plan benefits to terminated Members or their dependents. Where Members are eligible and elect to access such continuation health plan benefits, they will be required to pay to access ICHRA Allowances. The amount paid by Members and the portion contributed by you will depend on a variety of factors, as outlined by the IRS and other applicable regulators, which may be updated from time to time. Thatch may provide tools to assist you and Members in determining the cost of continuing health plan coverage.
You are responsible for contributions to Healthcare Payments Accounts, Fees, Taxes, and any expenses that Thatch incurs at your direction or on your behalf, including repayment of Advances or funding Reserves. Without limiting the foregoing, you agree to satisfy all commitments made to Members with respect to funding HSAs and providing ICHRA Allowances. All payments are subject to the debit authorization in the Platform Agreement and may be satisfied through payroll deductions, Reserves, or from Financial Accounts.
You may close your Employer Account upon 90 days' notice by contacting support@thatch.ai. Until the end of the termination notice period your contributions will continue to be debited and you are responsible for all Fees through the end of the notice period. After termination, you will have limited access to your Employer Account for reporting and auditing, however you will not have the ability to add or remove Members, manage your Employer Account, or take other actions; and until your Employer Account is finally closed, any access or use is subject to the Platform Agreement. You are also still responsible for all Fees, Taxes, and other liabilities incurred on your Employer Account and under the Platform Agreement, including these Employer Terms.
If you close your Employer Account, Members will continue to have access to their Member Accounts with some important differences:
Reimbursements will cease and Members will be Responsible for Insurance Premium Payments. Members will no longer receive reimbursements from you, including ICHRA Allowances. Members will be responsible for maintaining and paying premiums for their Insurance Plans at their own expense and ensure that their Financial Account is sufficiently funded to cover expenses.
Remaining ICHRA Allowances may be Unavailable to Members. Depending on how you configure their benefits and state-specific requirements, Members may lose access to unused amounts in their ICHRA Allowance. Funds maintained in an HSA will be held according to the Deposit Agreement.
Settling Advances and Return of Reserve. You must settle all Advances prior to closing your Employer Account. At our election, we may settle from either a Financial Account or Reserve, if one is maintained. All Fees and other amounts owed are immediately due and payable, including Member contributions and reimbursements that are committed or reimbursable ahead of the end of the notice period. After settlement of all outstanding obligations, any remaining amounts in a Reserve will be returned to the Financial Account you designate.
These Employer Terms are incorporated into the Platform Agreement. In the event of any inconsistency between these Employer Terms and the Platform Agreement, these Employer Terms will control.
These Thatch Member Terms ("Member Terms") provide additional terms for use of Member Accounts as described in the Platform Agreement between you and Thatch.
These Member Terms are an addendum to the Platform Agreement and, together, form the agreement governing your use of Member Accounts. Any terms used but not defined in Member Terms have the meaning provided in the Platform Agreement.
Your Member Account can be used for managing allowances and approved healthcare-related spend, modifying sources of payment including your Financial Account, selecting Insurance Plans with the help of Brokers, and managing other information including personal or contact information. These Member Terms further describe how to use your Healthcare Payments Accounts, pay for items that are not otherwise covered by Healthcare Payments Accounts, and to select Insurance Plans with a Broker.
Your Employer is responsible for selecting the amount contributed to Healthcare Payments Accounts while you are employed by them as well as any conditions regarding use of funds. This may include whether you have access to funds contributed to Healthcare Payments Accounts after you leave your employer.
Details regarding use of Healthcare Payments Accounts are included below.
Where access to HSAs is enabled, funds are made available to you through employer contributions, contributions through your payroll, or separate contributions from you. HSA funds can be used to pay for deductibles, copayments, and other qualified medical expenses. HSA funds are subject to Applicable Rules.
Where access to ICHRAs is enabled, funds are made available to you through payroll contributions. Additional funds may be needed from your Financial Account to cover the full costs of premiums. Excess funds may roll over from month to month until the end of your ICHRA's plan year depending on the terms of your ICHRA established by your Employer. For example, if your employer's ICHRA reimburses $500 per month and you select an Insurance Plan that costs $1000 per month, you would be responsible for the additional $500 per month to pay for the entire premium of your Insurance Plan; however, if you select an Insurance Plan that costs $400 per month, $100 may roll over for use in subsequent months until the end of the plan year. Your specific ICHRA Allowance may be based on criteria established by the Employer that may include costs of living where you reside or your employment status.
Upon termination, you will have access to remaining funds in HSAs and can continue coverage under your Insurance Plans. While unused ICHRA Allowances may be available to you, you will be required to provide a personal funding source for your Financial Account. This will be used to pay for your selected Insurance Plan, cover purchases made with your Thatch Card that are not qualified expenses, or purchase COBRA benefits, which are described in more detail below. You will also be responsible for payment of any Advances or funding any Reserves that may be required.
You may have access to COBRA benefits after your termination that provide some or all of the ICHRA Allowance you may have been entitled to during your employment. Whether or what amounts you may access will be subject to Applicable Rules.
You may close your Member Account upon 30 days' notice by contacting support@thatch.ai. Where you elect to do so, your payments for charges, including for Insurance Plans, will be debited from your Financial Account and you are still responsible for any charges made or expenses we incur on your behalf.
When you close your Member Account, you will be solely responsible for acquiring and paying for your own health insurance. You will also be responsible for rolling over any funds maintained in an HSA, if applicable.
You must settle all Advances prior to closing your Member Account. At our election, we settle from either a Financial Account or a Reserve if one is maintained. All amounts owed are immediately due and payable. After settlement of all outstanding obligations, any remaining amounts in a Reserve will be returned to the Financial Account you designate.
These Member Terms are incorporated into the Platform Agreement. In the event of any inconsistency between these Member Terms and the Platform Agreement, these Member Terms will control.