ITM TwentyFirst, LLC
TERMS OF SERVICE
By maintaining an end user account on ITM TwentyFirst, LLC’s (“Service Provider” or “ITM TwentyFirst“) 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 Individual (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 company or client company in the registration information on the Electronic System (as defined below) or on the life expectancy certificate (each, an “End User“) that desire to access Service Provider’s websites must maintain an account (“End User Account“) on Service Provider’s websites (www.itm21st.com or connect.itm21st.com), any application interface (API) (api.itm21st.com), 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 account 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 Individual“). End User agrees that each Authorized Individual may act on End User’s behalf, and the End User is bound by and liable for all actions or omissions of any Authorized Individual. Access to the Electronic System is obtained by a verification process during which time the End User or Authorized Individual signs in using a unique user name and password (“Log-In Credentials“). During the initial log-in for each End User or Authorized Individual and upon Service Provider’s request thereafter, the End User or Authorized Individual will be required to agree to these terms of service. Each successive time the End User or Authorized Individual accesses the Electronic System utilizing the Log-In Credentials constitutes renewal and reaffirmation by the End User and Authorized Individual of these terms of service. Service Provider reserves its right to revoke any End User or Authorized Individual’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, medical records, policy information, and insured documents)(collectively, the “Records”) uploaded to the End User Account or the Electronic System (whether uploaded by an Authorized Individual or Service Provider) are: (i) appropriately designated to the specified insured (“Insured“); (ii) properly obtained, whether from an Insured, 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 Individuals 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 Individuals.
d. Authorized Individual Termination/Separation. Upon termination or separation of an Authorized Individual’s relationship with End User, End User shall immediately revoke the Authorized Individual’s access to the Electronic System and the End User Account.
e. Password Changes. It is recommended that End User and each Authorized Individual 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 612.371.3008 and email at firstname.lastname@example.org) 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 Individual’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. No Reliance. End User represents and warrants that it shall not and shall prevent its Authorized Users from relying on any life expectancy certificate issued by Service Provider in making a decision to buy, sell or hold a life insurance policy, annuity or life settlement contract (“Life Insurance Contracts“).
4. 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 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.
5. 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 Individual 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 5.
6. Supplemental Terms for DMF Data. This Section includes required flow-down obligations under Service Provider’s license agreements with third parties (the “DMF Data Providers“), pursuant to which Service Provider receives information from the Limited Access Death Master File (“DMF“), as defined in 15 CFR § 1110.2. If End User receives any DMF data from Service Provider in connection with or through the services or the Electronic Systems, then the terms set forth below shall apply to End User:
a. Certified Person and Compliance with National Technical Information Service (“NTIS“) License Terms. End User hereby represents and warrants that End User (a) meets the requirements to be a “Certified Person” as set forth in the regulations found at 15 CFR § 1110 et seq. and (b) shall comply (as if End User were a subscriber) with the license terms, as modified from time to time, required by NTIS for Certified Persons to receive data from the DMF. End User shall not sell or otherwise distribute the DMF to third parties.
b. Change in Status. Should End User status change such that it would no longer have a permissible purpose to access DMF data, End User agrees to immediately notify Service Provider in writing and destroy all DMF data and certify such destruction to Service Provider.
c. Further Disclosure. If End User discloses any DMF data to a third party (only after obtaining Service Provider’s consent), End User shall require such third party to make the representation and warranty set forth in Section 6.a above and agree to the terms of this Section 6 as if a party hereto.
d. Security. End User shall at all times have security provisions in place to protect DMF data from being visible, searchable, harvestable or in any way discoverable on the internet. End User understands that any successful attempt by any person to gain unauthorized access to or use of the DMF data provided by Service Provider may result in immediate termination of the End User’s access. In addition, any successful attempt by any person to gain unauthorized access may under certain circumstances result in penalties as prescribed in 15 CRF § 1110.200 levied on End User or the person attempting such access. End User will take appropriate action to ensure that all persons accessing the DMF data from Service Provider are aware of their potential liability for misuse or attempting to gain unauthorized access. End User must promptly report any such access or attempted access is a breach, or attempted breach, of security to Service Provider in writing, by phone at 612.371.3008 and email at email@example.com.
e. DMF Compliance Audit. End User agrees to be subject to periodic and unscheduled audits of the End User’s systems, facilities and procedures relating to End User’s safeguards for, access to, and use and distribution of DMF data to determine compliance with 15 CFR § 1110 et seq. End User agrees to retain a list of all employees, contractors, and subcontractors to which it provides DMF Data and to make that list available in an audit.
f. Law, Dispute Resolution, and Forum. End User acknowledges that this Section 6 is governed by federal law.
g. Liability. The DMF Data Providers and Service Provider (a) make no warranty, express or implied, with respect to the DMF information provided, including but not limited to, implied warranties of merchantability and fitness for any particular use; (b) assume no liability for any direct, indirect or consequential damages flowing from the use of any part of the DMF, including infringement of third party intellectual property rights; and (c) assume no liability for any errors or omission in the DMF. The DMF does have inaccuracies and the NTIS and the Social Security Administration (“SSA“), which provides the DMF, do not guarantee the accuracy of the DMF. SSA does not have a death record for all deceased persons. Therefore, the absence of a particular person in the DMF is not proof that the individual is alive. It is also possible that the records of a person who is not deceased are included erroneously in the DMF. End User specifically acknowledges these limitations in the DMF.
h. Indemnification. End User shall indemnify and hold harmless the DMF Data Providers and Service Provider from all claims, liabilities, demands, damages, expenses, and losses arising from or in connection with End User’s, End User’s employees’, contractors’, or subcontractors’ use of the DMF, including but not limited to any and all claims or liability arising from intellectual property rights.
7. Miscellaneous. These terms of service shall be governed by the laws of the State of Minnesota, without regard to conflict of law principles. End User and Authorized Individual 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 County of Hennepin, State of Minnesota subject to Section 6.f. above. 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 Individual’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 certificate on an Insured. Service Provider provides the life expectancy certificates as an independent contractor. The following Sections of this these terms of service survive termination: Sections 2 through 9 and the language included on the life expectancy certificates as described below in capitalized letters. 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 Individual 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 Individual beyond the terms contained herein, including those contained in purchase orders or confirmations issued by the End User or Authorized Individual, 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, life expectancies estimates, and DMF data, the terms contained herein shall supersede any servicing or medical records retrieval agreement between End User and Service Provider.
8. Acceptance of Product Terms and Conditions. End User and Authorized Individual have each read and hereby accept the terms and conditions (if any) included on each product (including but not limited to life expectancy or medical records orders or confirmation of past life expectancy estimates) ordered by End User or an Authorized Individual (or Service Provider upon request) through Service Provider’s website. If End User or Authorized Individual do not agree to these terms of service, End User or Authorized Individual may choose not to become a user of the services provided by Service Provider.
9. Product Terms and Conditions. For all life expectancy orders, the following terms and conditions apply as set forth in the applicable life expectancy certificate (quoted language below):
“TERMS AND CONDITIONS: ITM TWENTYFIRST DID NOT VERIFY THE COMPLETENESS OR ACCURACY OF THE INFORMATION PROVIDED BY CLIENTS OR ANY THIRD PARTY THAT WAS USED IN PREPARING THIS CERTIFICATE. LIFE EXPECTANCY FIGURES ARE ESTIMATES ONLY. ITM TWENTYFIRST DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES TO CLIENT COMPANY OR ANY THIRD PARTY WITH RESPECT TO THIS CERTIFICATE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY THAT AN INSURED WILL DIE ON OR NEAR A PROJECTED DATE. ITM TWENTYFIRST DOES NOT RECOMMEND THAT CLIENT COMPANY OR ANYONE BUY, SELL OR HOLD A LIFE INSURANCE POLICY OR LIFE SETTLEMENT CONTRACT ON THE BASIS OF THIS LIFE EXPECTANCY ESTIMATE AND NO ONE (INCLUDING CLIENT COMPANY) SHALL RELY ON THIS CERTIFICATE WHEN DECIDING TO BUY, SELL OR HOLD A LIFE INSURANCE POLICY OR LIFE SETTLEMENT CONTRACT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ITM TWENTYFIRST EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IF ITM TWENTYFIRST BECOMES LIABLE TO CLIENT COMPANY OR ANY PARTY WITH RESPECT TO THIS OR ANY OTHER LIFE EXPECTANCY CERTIFICATES PREVIOUSLY ISSUED BY ITM TWENTYFIRST FOR ANY REASON, THE SOLE LIABILITY (WHETHER ARISING BY NEGLIGENCE, CONTRACT, STATUTE OR OTHERWISE) SHALL BE DIRECT DAMAGES, NOT TO EXCEED THE AMOUNT PAID BY CLIENT COMPANY TO ITM TWENTYFIRST FOR THE SPECIFIC LIFE EXPECTANCY AT ISSUE, AND IN NO EVENT SHALL THE AGGREGATE DAMAGES FOR ALL LIFE EXPECTANCIES PREVIOUSLY OR HEREAFTER COMPLETED BY ITM TWENTYFIRST FOR CLIENT COMPANY EXCEED TEN THOUSAND DOLLARS.
INSURED-SPECIFIC MEDICAL INFORMATION MAY BE CONFIDENTIAL UNDER STATE OR FEDERAL LAW. LIFE EXPECTANCY INFORMATION PROVIDED TO CLIENT COMPANY BY ITM TWENTYFIRST SHALL NOT BE USED BY CLIENT IN ANY MANNER THAT VIOLATES APPLICABLE LAWS.
THIS CERTIFICATE WAS ISSUED USING ITM TWENTYFIRST’S TRADITIONAL UNDERWRITING METHODOLOGY (“TRADITIONAL METHOD“). FROM TIME TO TIME, ITM TWENTYFIRST MAY DEVELOP NEW LIFE EXPECTANCY PRODUCTS OR DATA ANALYTICS USING METHODS (“NEW METHODS“) THAT DIFFER FROM THE TRADITIONAL METHOD. THE NEW METHODS MAY INCLUDE DIFFERENT DATA, ANALYSIS, ALGORITHMS, OR TECHNOLOGY THAN THOSE USED IN THE TRADITIONAL METHOD AND MAY RESULT IN DIFFERENT LIFE EXPECTANCY ESTIMATES FOR THE SAME INSURED.
SUBJECT TO ALL OF THE LIMITATIONS SET FORTH ABOVE, THIS CERTIFICATE IS ISSUED SOLELY TO, AND FOR THE EXCLUSIVE USE OF, THE CLIENT COMPANY IDENTIFIED ON THIS CERTIFICATE. WITHOUT PRIOR WRITTEN CONSENT OF ITM TWENTYFIRST, CLIENT COMPANY SHALL NOT SELL, TRANSFER, RE-DISTRIBUTE, POST, PROVIDE COPIES OF, OR OTHERWISE DISCLOSE THIS CERTIFICATE OR THE INFORMATION CONTAINED THEREIN TO ANY THIRD PARTY, UNLESS REQUIRED BY LAW (EACH, AN “UNAUTHORIZED DISCLOSURE“). CLIENT COMPANY WILL PAY ALL COSTS AND ATTORNEY FEES INCURRED BY ITM TWENTYFIRST TO ENFORCE THE TERMS HEREIN. ANY USE OF THIS CERTIFICATE, INCLUDING ANY UNAUTHORIZED DISCLOSURE, CONSTITUTES AGREEMENT TO THE TERMS HEREIN.”
ADDITIONAL TERMS AND CONDITIONS APPLY TO TERTIARY AND SIMPLIFIED LIFE EXPECTANCY ORDERS AS SET FORTH IN THE APPLICABLE CERTIFICATE.
Last updated: 6-11-2021