BENEFITFOCUS…SPFTWARE AND SERVICES FOR BENEFITS

Benefitfocus.com Terms of Use

The services and products provided by Benefitfocus through the Web Site ("Services" or "Products") and the use of the Web Site are governed by these terms and conditions (the "Terms and Conditions"). By accessing or using the Services and Products or the Web Site or by registering on the Web Site, you agree that (1) you have read and familiarized yourself with these Terms and Conditions, (2) you understand the Terms and Conditions, and (3) you are bound by the Terms and Conditions in your use of these Services, Products and/or the Web Site. If you do not agree to the Terms and Conditions, you may not access or use the Services, Products or the Web Site. The Terms and Conditions together with any additional terms and conditions specific to a particular Service or Product (incorporated herein by reference), constitute the entire agreement (the "Agreement") between Benefitfocus and you regarding this subject matter and supersede and replace any and all prior or contemporaneous agreements between the parties regarding such subject matter.

Changes to Services, Products, Web Site and Terms and Conditions

You acknowledge and agree that Benefitfocus may change, modify, amend, suspend or discontinue any aspect of the Services, Products or the Web Site, at any time, without notice and without liability to you or to any third party. Benefitfocus reserves the right to impose limits on certain features of the Services, the Products or the Web Site, at any time, without notice and without liability to you or to any third party. Further, you acknowledge and agree that Benefitfocus may amend any or all of the Terms and Conditions, at any time, at Benefitfocus's sole discretion, without notice. Any amendment of the Terms and Conditions will be reflected on the Web Site and therefore you are encouraged to periodically review the Terms and Conditions posted on the Web Site. Use of the Services, Products and the Web Site constitutes acceptance of the Terms and Conditions, including any amendments thereto.

The terms of the Benefitfocus Privacy Policy are incorporated by reference into these Terms and Conditions. You are encouraged to periodically review the Benefitfocus Privacy Policy posted on the Web Site and accessible via a link on the login screen.

User Conduct

You are solely responsible for all conduct and transmissions that take place under your member id and password, and your other use of the Services, Products and/or Web Site. You represent, warrant and covenant that your use of the Services, Products and Web Site shall not:
(a) violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. Without limiting the foregoing, you represent, warrant and covenant that you will not export from the United States any asset in violation of U.S. law;
(b) interfere with or disrupt computer networks connected to the Services, Products or the Web Site;
(c) impersonate any other person or entity, or make any misrepresentation as to your employment by or affiliation with any other person or entity;
(d) forge headers or in any manner manipulate identifiers in order to disguise the origin of any User Information;
(e) upload, post, transmit, publish, or distribute any material or information for which you do not have all necessary rights and licenses;
(f) upload, post, transmit, publish, or distribute any material which infringes, violates, breaches or otherwise contravenes the rights of any third party, including any copyright, trademark, patent, rights of privacy or publicity or any other proprietary right;
(g) interfere with or disrupt the use of the Services, Products or the Web Site by any other user, nor "stalk", threaten, or in any manner harass another user;
(h) upload, post, transmit, publish, or distribute any unauthorized or unsolicited advertising, solicitations, offers for the sale of services, unsolicited communications, or offers for any "investment opportunities" (except as may be permitted by the use of the Services, the Products or the Web Site as provided for herein);
(i) upload, post, transmit, publish, or distribute any material or information which contains a computer virus, or other code, files or programs intending in any manner to disrupt or interfere with the functioning of the Services, the Products, the Web Site, or that of other computer systems;
(j) use the Services, the Products or the Web Site in such a manner as to gain unauthorized entry or access to the computer systems of others;
(k) upload, post, transmit, publish or distribute any material or information which constitutes or encourages conduct that would constitute a criminal offense, give rise to other liability, or otherwise violate applicable law;
(l) upload, post, transmit, publish, or distribute any material or information that is unlawful, or which may potentially be perceived as being harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, or racially, ethnically, or otherwise objectionable; or
(m) reproduce, copy, modify, sell, distribute or otherwise exploit for any commercial purposes the Services, the Products or the Web Site, or any component thereof (including, but not limited to any materials or information accessible through the Web Site).

Indemnity

You agree to indemnify and hold Benefitfocus, and its subsidiaries, affiliates, directors, officers, agents, partners, employees, successors and assigns harmless from any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of the User Information, your use of the Services, Products or the Web Site, your violation of the Terms and Conditions, the Agreement and/or the Privacy Policy, your violation of any rights of another, or your violation of any federal, state or other law, rule, regulation in the United States or any other country in the world or any breach of any of your representations, warranties and/or covenants related thereto.

Termination

Benefitfocus expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Services, the Products and/or the Web Site by any person or entity, in the sole discretion of Benefitfocus, for any reason or for no reason and without notice.

No Relationship

You acknowledge and agree that your use of the Services, Products and/or the Web Site does not make you or Benefitfocus either an agent, representative, broker, employee, partner, or joint venturer of the other party. This Agreement shall not be interpreted or construed to create an association, joint venture, agency, franchise or partnership between the parties or to impose any partnership obligation or liability upon either party.

Links to Third Parties

The Web Site may provide links to the Web sites or services of others but these links do not constitute an endorsement by Benefitfocus of such sites or services, or the products, content, materials or information presented or made available by such other sites. You acknowledge and agree that Benefitfocus is not responsible for any damages or losses caused or alleged to have been caused by the use of any third party sites, or from the services, products, content, material, or information presented by or made available through such other sites.

Downloading Information/Material

You hereby release Benefitfocus and its subsidiaries, affiliates, directors, officers, agents, partners and employees, and any successors and assigns from any and all actual or alleged damages which may result from you downloading any information or materials from the Web Site.

Choice of Law; Consent to Jurisdiction

This Agreement and all questions with respect to the interpretation of this Agreement, shall be governed by and construed in accordance with the internal laws of the State of South Carolina, without regard for conflict of laws provisions. You expressly consent to personal and exclusive jurisdiction in the courts of the State of South Carolina located in Charleston County.

Disclaimer of Warranties

The services, products and the web site, including all content, functions, materials, services, products and information made available on or accessed through the services, products or the web site, are provided on an "as is", "where is", "as available" basis without representations or warranties of any kind whatsoever, express or implied, including without limitation non-infringement, merchantability or fitness for a particular purpose. Benefitfocus does not warrant that the services, products or the functions, features or content contained, made available on or accessed through the services, products or the web site, including without limitation any third-party software, products, services or other materials used in connection with the services, products or the web site, will be timely, secured, uninterrupted or error free, or that defects will be corrected. Benefitfocus makes no warranty that the services, the products or the web site will meet user's requirements, and expressly disclaims any representations, warranties or guarantees other than those expressly made in conjunction with the provision of the services and/or products. If a user is, dissatisfied with the services, products or the web site, the user's sole remedy is to discontinue using the services, products and/or the web site. Benefitfocus makes no representations or warranties regarding any services, products or goods purchased or obtained through the services, the products or the web site, or any transactions entered into through the services, the products or the web site. No advice or information, whether oral or written obtained by user from benefitfocus or through the services, the products or web site shall create any warranty not expressly made in conjunction with the sale of the services or the products. Benefitfocus expressly disclaims any responsibility for any misrepresentations or breaches committed by any user.

Limitation of Liability

In no event shall benefitfocus be liable for any damages that are directly or indirectly related to the use of, or the inability to use, the services, the products, the web site or the content, materials and functions related thereto, including without limitation, special, indirect, incidental, consequential or punitive damages, loss of revenue or anticipated profits or lost business, lost goodwill or lost sales. In no event shall the total liability of benefitfocus to a user for all damages, losses, claims and causes of action (whether in contract or tort, including, but not limited to, negligence or otherwise) arising from this agreement or the use of the services, products or the web site exceed, in the aggregate, one hundred ($100.00) dollars. The foregoing limitation shall apply and survive notwithstanding any failure of essential purpose of any remedy.

Notices

Notices shall be given: To Benefitfocus: To be valid, notices must be sent by e-mail (notices@Benefitfocus.com) and by certified mail, return receipt requested, to Benefitfocus.com, Inc., 100 Benefitfocus Way, Charleston, South Carolina 29492, or to such other address as may be designated from time to time.

Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect

Waiver

The failure of Benefitfocus to exercise or enforce any right or provision of the Agreement will not be deemed a waiver of such right or provision.

Trademarks

Benefitfocus, Benefitfocus.com and the logos thereof are trademarks or service marks, or registered trademarks or service marks of Benefitfocus.com, Inc. No display or use of such marks may be made without the prior written permission of Benefitfocus.com, Inc.