Fasano Associates, Inc.
Terms of Service
By maintaining an end user account on Fasano Associates, Inc.’s (“Service Provider”) website, you hereby acknowledge that you (i) have read, understand and agree to be bound by these terms of service, (ii) are of legal age to enter into a binding agreement, (iii) have the requisite authority to bind the End User (as defined below) to these terms of service, and (iv) hereby bind the End User to these terms of service. The term “you” refers to the Authorized User (as defined below) that is specified in the registration information associated with the End User’s account. For a business entity client of Service Provider, the End User is the client company for which the End User account is maintained.
1. System Access through User Account. Clients of Service Provider identified as the requesting party, company or client company on the mortality profile report (each, a “Life Expectancy Estimate”) (each client company, an “End User”) that desire to access Service Provider’s websites must maintain an account (“End User Account”) on Service Provider’s websites (www.fasanoassociates.com or https://fast.fasanoassociates.com), any application interface (API), and any other methods of access, including but not limited to email or secure file transfer (collectively, “Electronic System“). Service Provider will not permit a user to obtain an End User Account to access the Electronic System unless all required fields (including but not limited to name, address, phone number, contact name, and email address) are provided to the Service Provider as required during the registration process. End User shall identify an individual to be the administrator on the End User Account (“Administrator”) and the Administrator will have full authorization to add, delete and change Authorized Users’ information. Each End User is limited to one End User Account, even if the End User is a business entity unless the Service Provider agrees to an exception for billing purposes or another business reason. The End User may designate individuals who may access the End User Account or serve as the Administrator (each such individual is an “Authorized User”). End User agrees that each Authorized User may act on End User’s behalf, and the End User is bound by and liable for all actions or omissions of any Authorized User. Access to the Electronic System is obtained by a verification process during which time the End User or Authorized User signs in using a unique user name and password (“Log-In Credentials”). During the initial log-in for each End User or Authorized User and upon Service Provider’s request thereafter, the End User or Authorized User will be required to agree to these terms of service. Each successive time the End User or Authorized User accesses the Electronic System utilizing the Log-In Credentials constitutes renewal and reaffirmation by the End User and Authorized User of these terms of service. Service Provider reserves its right to revoke any End User or Authorized User’s access to the Electronic System at any time without notice.
2. End User Responsibilities Related to Electronic System Access and Data Integrity.
a. Data Integrity. End User shall verify and ensure that all information and documents (including, but not limited to, where applicable, medical records, responses from Service Provider’s questionnaires, policy information, and insured documents)(collectively, the “Records”) uploaded to the End User Account or the Electronic System (whether uploaded by an Authorized User or Service Provider) are: (i) appropriately designated to the specified insured or other specified individual (each, an “Individual”); (ii) properly obtained, whether from the Individual, a health care provider, an authorized agent or otherwise; (iii) handled in compliance with The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, as well as all HIPAA rules, standards and implementation guides; (iv) have not been modified or falsified in any way; and (v) delivered by or on behalf of End User or an Authorized User without violating any agreements, laws or regulations. End User hereby grants Service Provider a license to (a) use the Records provided by or on behalf of End User to prepare and issue Life Expectancy Estimates for End User or other Service Provider clients (with respect to cumulative underwriting), and (b) disclose the Records to Service Provider’s affiliates and vendors.
b. Compliance with Acceptable Use Policy and Applicable Laws. End User agrees to comply and shall cause its Authorized Users to comply with all applicable laws and regulations, including but not limited to those related to copyright, trademark, other intellectual property rights, data privacy, international communications, pornography, obscenity, import/export regulations, and tax laws.
c. End User Account Content Responsibility. End User is solely responsible for the content of the End User Account and maintaining the accuracy of the End User profile information, including information relating to Authorized Users.
d. Authorized User Termination/Separation. Upon termination or separation of an Authorized User’s relationship with End User, End User shall immediately revoke the Authorized User’s access to the Electronic System and the End User Account.
e. Password Changes. It is recommended that End User and each Authorized User shall change the password associated with their Log-In Credentials no less than one (1) time every three (3) months.
f. Unauthorized Access. End User shall not allow anyone other than End User and Authorized Users to access the End User Account or Electronic System. End User and Authorized Users shall notify Service Provider promptly (by phone at 202-457-8188 and email at email@example.com) if either suspects unauthorized use or access to the End User Account or Electronic System. End User is solely responsible for such unauthorized use and any damages that may result therefrom. In the event an act or omission occurs that End User believes placed the Log-In Credentials or the Electronic System at risk or exposure to unauthorized use, End User and each Authorized User shall immediately change the password associated with the End User Account and immediately provide Service Provider notification of the potential risk. End User shall fully cooperate with any investigation Service Provider initiates in response to a report of a potential risk. End User shall notify Service Provider immediately if End User becomes subject to any lawful order or process that would prohibit or limit End User or Authorized User’s use of the Service.
g. Improper Use/Access. End User shall not and shall prevent its Authorized Users from (i) causing any code, files, scripts, agents or programs intended to do harm, including, for example viruses, worms, time bombs and Trojan horses, or other harmful code to be entered into the Electronic System, (ii) selling, reselling, licensing, sublicensing, distributing, making available, renting or leasing the Electronic System, (iii) interfering with or disrupting the integrity or performance of the Electronic System, (iv) attempting to gain unauthorized access to the Electronic System, (v) copying the Electronic System or any part, feature, function or user interface thereof, (vi) accessing the Electronic System in order to build a competitive product or service, and (vii) reverse engineering the Electronic System.
3. Confidentiality. End User and Service Provider agree (a) not to disclose the other party’s Confidential Information except as permitted or licensed under these terms of service or as necessary to perform its obligations hereunder, and (b) to protect the other party’s Confidential Information using the same degree of care it uses to protect the confidentiality of its own confidential information, but no less than a reasonable degree of care. “Confidential Information” shall include but is not limited to all confidential or non-public information and data, in whatever form, whether written, oral, electronic or otherwise furnished by the disclosing party to the receiving party. Confidential Information does not include such information or data that can be shown to have been (i) previously obtained or known by the receiving party with no obligation to keep such information or data confidential, (ii) in the public domain (either prior to or after the furnishing of such information or data from the disclosing party) through no fault of such receiving party, (iii) later acquired by the receiving party from another source if the receiving party is not aware that such source is under an obligation to the other party to keep such information or data confidential, or (iv) is produced as a result of the receiving party’s independent development of the information without the use of any of the disclosing party’s Confidential Information. Notwithstanding the foregoing, Service Provider may disclose Confidential Information where such Confidential Information is subject to any subpoena, writ, judgment, decree injunction or similar order issued, promulgated or entered by or with any governmental authority.
4. No Reliance and Indemnification. End User represents and warrants that it shall not and shall prevent its Authorized Users from relying on any Life Expectancy Estimate issued by Service Provider in making a decision to buy, sell or hold a life insurance policy or annuity (“Life Insurance Contracts”). End User shall indemnify and hold Service Provider and its affiliates and vendors harmless from any third party who has, in whole or in part, directly or indirectly, received or obtained Life Expectancy Estimates from End User and relied thereon.
5. Evaluation of Life Insurance Contracts. End User represents and warrants that it has, either directly or through third-party consultants, such knowledge, education and experience relating to investment in Life Insurance Contracts and End User can identify, understand and evaluate the investment risks associated with an acquisition, holding or sale of a Life Insurance Contract. End User determines whether to purchase, sell or hold any Life Insurance Contracts independent of any information provided by Service Provider. End User covenants, represents and warrants that (a) it is the owner or a prospective buyer (or agent thereof) of the applicable Life Insurance Contract for each Life Expectancy Estimate that End User requests, and (b) it has the right to receive such Life Expectancy Estimates, including the medical information and other information derived from medical records provided therein or therewith.
6. Life Expectancy Estimates. Life Expectancy Estimates may be based on underwriting “table ratings” converted into Life Expectancy Estimates by use of mortality tables, statistical studies, clinical judgment, or by some combination of the foregoing. In some instances, it may not be possible to provide an estimated life expectancy (“No Quote”). Service Provider will not be liable for the accuracy or appropriateness of any mortality table(s) used, or for any mortality rating or estimated life expectancy provided, or for any information and documents resulting in a No Quote.
7. Datasets. Notwithstanding anything to the contrary including but not limited to servicing agreements or confidentiality agreements between Service Provider and End User, End User hereby grants Service Provider licenses to (a) include Life Expectancy Estimate, medical, and other information provided by or on behalf of End User or an Authorized User to Service Provider in Service Provider’s datasets (“Datasets”) whether such records were provided before or after the date of these Terms of Service, (b) use the Datasets internally, (c) disclose the Datasets to Service Provider’s affiliates and vendors, and (d) disclose the Datasets to certain of Service Provider’s clients subject to obligations of confidentiality. As between the parties hereto, Service Provider owns all right, title and interest in and to the Datasets. End User represents and warrants that it has obtained all necessary consents, approvals, permits, and authorizations, as required by law or otherwise, to grant the licenses in this Section 7.
8. Miscellaneous. End User shall pay the fees set forth in an invoice delivered by Fasano. These terms of service shall be governed by the laws of the State of Delaware, without regard to conflict of law principles. End User and Authorized User agree that all actions or proceedings arising in connection with these terms of service shall be tried and litigated exclusively in the state or federal courts located in the State of Delaware. If Service Provider takes action to enforce its rights under these terms of service, End User shall be liable for attorneys’ fees, costs and expenses incurred if Service Provider is the prevailing party. End User and Authorized User’s rights and obligations under these terms of service may not be assigned or transferred without written permission of Service Provider. No waiver of any provision herein will be binding unless executed in writing by the party making the waiver. No waiver of any provision herein will be deemed, or will constitute, a waiver of any other provision, and no waiver will constitute a continuing waiver. Service Provider may confirm to other of Service Provider’s clients that Service Provider has completed a Life Expectancy Estimates on an Individual. Service Provider provides the Life Expectancy Estimates as an independent contractor. Service Provider shall not be liable for any indirect, incidental, or consequential damages, however arising, incurred by End User from receipt or use of the Life Expectancy Estimates delivered hereunder or information contained therein. The following Sections of this these terms of service survive termination: Sections 2 through 10 and the language included on the Life Expectancy Estimates as described below in Section 10. If any provision of these terms of service or any exhibit shall be held by a court of competent jurisdiction to be contrary to law, invalid or otherwise unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and in any event the remaining provisions of these terms of service shall remain in full force and effect. End User agrees to, and shall comply with, changes in pricing, and changes to other provisions of these terms of service as Service Provider shall make from time to time with notice to End User or Authorized User via e-mail, by posting on Service Provider’s websites, through the End User Account, online “click wrap” amendments, facsimile, mail, invoice announcements, or other written notification. Except as otherwise provided herein, these terms of service constitute the final written agreement and understanding of the parties and is intended as a complete and exclusive statement of the terms of the agreement, which shall supersede all other representations, agreements, and understandings, whether oral or written, which relate to all matters within the scope of these terms of service. Any new, other, or different terms supplied by the End User or Authorized User beyond the terms contained herein, including those contained in purchase orders or confirmations issued by the End User or Authorized User, are specifically and expressly rejected by Service Provider unless Service Provider agrees to them in a signed writing specifically including those new, other, or different terms. The terms contained herein shall supersede and govern in the event of a conflict between these terms and any new, other, or different terms in any other writing. With respect to medical records and Life Expectancy Estimates, the terms contained herein shall supersede any consulting, servicing or medical records retrieval agreement between End User and Service Provider. For a period of two (2) years following the issuance of a Life Expectancy Estimate, End User agrees not to solicit, interfere with, or retain Service Provider’s employees, contractors or agents for employment or contracting without Service Provider’s express advance written approval. End User agrees that a violation of the foregoing sentence will be cause for entry of a preliminary, temporary or permanent, mandatory or restraining injunctions, orders, judgments or decrees as may be necessary to protect Service Provider.
9. Acceptance of Product Terms and Conditions. End User and Authorized User have each read and hereby accept the terms, disclaimer and waiver (if any) included on each product (including but not limited to Life Expectancy Estimate or medical records orders or confirmation of past Life Expectancy Estimates) ordered by End User or an Authorized User (or Service Provider upon request) through Service Provider’s website. If End User or Authorized User do not agree to these terms of service, End User or Authorized User may choose not to become a user of the services provided by Service Provider.
10. Product Terms, Disclaimer and Waiver. For all Life Expectancy Estimate orders, the terms, disclaimer and waiver attached hereto as Exhibits A shall apply as set forth in the applicable Life Expectancy Estimate (quoted language set forth in Exhibits A). Additional terms and conditions may apply to other Life Expectancy Estimates, including but not limited to informal indications, as set forth in the applicable Life Expectancy Estimate.
Exhibit A – Terms, Disclaimer and Waiver Applicable to
Mortality Profile Report
“TERMS, DISCLAIMER AND WAIVER: Only the Vice President & Medical Director or President of Fasano Associates, Inc. (“Fasano”) has the authority to make or authorize the issuance of an estimated life expectancy or mortality rating on behalf of Fasano.
Estimated life expectancy and mortality ratings are estimates based on records provided to Fasano by a Requesting Party (identified in this Mortality Profile Report (this “Report”)) and reflect Fasano’s clinical or non-clinical judgment, as applicable. Records provided may not be legible or may be of poor quality, and to the extent that they are, cannot be incorporated into the review. Fasano does not verify the completeness or accuracy of the records and other information provided to Fasano to prepare this Report. Fasano makes no guarantees, representations or warranties of any kind regarding any specific life expectancy (including but not limited to that the insured individual will die on or near a projected date), mortality rating, or other matter in this Report, or concerning the suitability of any investment or business made by any person using this Report. Fasano does not recommend that Requesting Party or any third party buy, sell, or hold a life insurance policy, annuity, or life settlement (collectively, a “Life Insurance Contract”) policy based on this Report and no one (including the Requesting Party) shall rely on this Report when deciding to buy, sell, or hold a Life Insurance Contract. This Report is intended only for the specific use by the Requesting Party or other party authorized by Fasano in writing, and neither the Requesting Party nor any party authorized by Fasano shall distribute this Report to any other party without the advance written consent of Fasano. Any other person who may obtain or use this Report or the information herein fully and forever waives any and all rights to file suit or make claims of damages of any kind against Fasano, its officers, directors, and employees arising out of or related in any way to the contents, receipt, use of, or reliance upon this Report.
To the maximum extent permitted by law, Fasano expressly disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose. Without limiting the language in the Terms of Service (available at www.fasanoassociates.com/terms-of-service), if Fasano becomes liable to Requesting Party or any third party with respect to this Report or any other reports issued by Fasano for any reason, the sole liability of Fasano (whether arising by negligence, contract, statute or otherwise) shall be direct damages, not to exceed the amount paid by Requesting Party to Fasano for the specific report at issue, and in no event shall the aggregate damages for all reports previously or hereafter prepared by Fasano for Requesting Party exceed ten thousand dollars ($10,000.00).
All medical information and/or information specific to the identity of any individual are considered confidential under certain state and federal laws. If the Requesting Party’s state or the insured individual’s state of residence requires such protection, then state law prohibits the Requesting Party or any other party from making further disclosure of the information without specific written consent of the person to whom it pertains, or as otherwise permitted by law.
This Report is subject to, and Requesting Party (and any other person who may obtain or use this Report) agrees to comply with, the Terms of Service (available at www.fasanoassociates.com/terms-of-service).”
Last updated: 11/24/21