Last update: June 01, 2021
Method of Acceptance; How to Object
ERISAfire LLC (“ERISAfire”) is a software-as-a-service provider whose platform is designed to facilitate communication and compliance project management among Employers, Consultants and Geeks using email marketing, in-app chat messaging, a semi-customizable compliance calendar, and other software tools (the “Services”). The parties agree that ERISAfire’s role with respect to the Services is that of a communications service provider, like a wireless company for text messages or email server host for email messages, and that ERISAfire does not provide advice or consultation of any kind or nature whatsoever. ERISAfire does not provide, and has no duty to monitor, content on the Services. No User or User Organization is an agent or independent contractor of ERISAfire. All communications using the Services are the responsibility of the respective Users and User Organizations party to such communications.
Employer Users, Consultant Users and Geek Users are collectively referred to herein as “Users.” Employers, Consultants and Geeks are collectively referred to herein as “User Organizations.” Users, User Organizations and ERISAfire are collectively referred to herein as the “parties.”
Registration of an organization as a Geek or Consultant, or of an individual as a Geek User or Consultant User, on the Services is based solely on the representation of the organization or individual requesting registration as such. ERISAfire does not, and has no duty to, make any determination as to whether the organization or individual is appropriately credentialed to hold it-, him- or herself out as any particular type of organization (e.g., law firm, accounting firm or insurance agency) or professional (e.g., attorney, CPA or insurance agent). Each User and User Organization is responsible for making that determination for it-, him- and herself.
Attorney Representation Terms and Conditions
Geek Engagement and Disengagement
Engagement of Geeks by Employers occurs each time a Geek User accepts a discrete matter submitted by an Employer User (or by a Consultant User on an Employer’s behalf). A Geek User accepts a discrete matter and the related engagement by drafting or reviewing a draft of an answer to that Employer’s question or by preparing or reviewing a draft of a document or form, as the case may be. The attorney-client relationship terminates, and the Geeks and Geek Users are disengaged from representation, upon submission of an answer to a question or draft of a document or form.
Scope of Representation
The scope of legal representation of Employers by Geeks pursuant to this engagement is limited to the discreet matter requested by an Employer (or by a Consultant User on an Employer’s behalf) through the Services. Geeks have no duty to undertake any other projects or issues or to answer any other questions. Neither Geeks nor Consultants have any continuing obligation to advise Employers with respect to future legal developments, to update any submitted or approved work product or otherwise provide Employer updates after submission of work product, such as if the law relied upon in the answer or document or form is amended, abrogated or repealed or if a new law is passed or regulation is promulgated.
Reliance Upon Facts Presented
Geek Users may rely upon information provided by Employer Users and Consultant Users; Geek Users have no duty to independently establish the facts presented by or through such information, and they may accept them as established fact. For example, and without limiting the foregoing, if a Consultant User or Employer User provides information through the Services suggesting the Employer’s eligibility requirement for benefits is that employees must work 30 hours per week on average, Geek Users may accept this as established fact and do not need to inquire further.
Attorney-Client Privilege and Confidentiality
Geeks are solely responsible for maintenance of attorney-client privilege and attorney-client confidentiality. Neither Consultants nor ERISAfire shall be liable for failure of Geeks to maintain attorney-client privilege or attorney-client confidentiality.
Involvement of Non-Lawyer Consultants and Insurance Brokers
Use of Email, In-App Chat and Website Posts
Geeks and Consultants will frequently communicate with Employers and each other by email and website posts to ensure efficient and timely consideration of matters related to the legal advice and non-legal consulting provided through the Services. The parties acknowledge that there is some risk that email, in-app chat and web posts, like other forms of communication, may not be kept confidential. One risk is the remote possibility that an email, chat message or website post may be deliberately intercepted by a third party as it is traveling on the Internet. Employer expressly consents to these forms of communication.
The parties further acknowledge that email, chat and website posts are in many cases available to third parties, including network administrators and SaaS providers like Google or Amazon, as well as to other companies and individuals who have or obtain access to a computer’s storage memory or Internet email or website hosting account. The reasons for such access include things necessary for the proper functioning of the services, facilitating such communications and things that benefit the third party (e.g., data mining, brand enhancement, etc.). Employer expressly authorizes the use email and website posts to discuss its legal representation provided for herein, including confidential matters relating to that representation. If at any point in the future Employer desires to revoke such authorization, Employer must advise ERISAfire in writing immediately and request deactivation of the Employer’s entire organization and all related Employer Users from the Services.
Cloud Computing and Storage
Joint Representation and Conflicts
Acceptance of a question or discrete matter by a Geek User constitutes engagement of that Geek User only and no other. No Geek or Geek User has any duty to supervise or monitor the conduct of any other Geek or Geek User.
Geeks and Employers represent and warrant that Geeks are providing legal services to Employer and that there are no other parties whose interests are jointly implicated. Geeks represent Employers and not Employer Users individually; Geeks do not represent any owners, officers, director, employees or agents of Employers.
By accepting each representation, Geek represents and warrants that, to its knowledge, it has no conflict of interest concerning the Employer at issue or any other Employer using the Services. At any time a Geek becomes aware of any conflict or potential conflict between the interest of an Employer and those of some other party such Geek has represented or is representing, such Geek shall immediately call the conflict to the Employer’s and ERISAfire’s attention so that Employer, Geek and ERISAfire may consider how to address the matter. In addressing conflicts, the parties will cooperate to both preserve privilege and confidentiality and facilitate the implementation of appropriate access controls on the Services. Employer acknowledges that, in cases of conflict, all Geeks reserve the right to withdraw from representation of any or all clients.
Tax Advice Disclaimer
Employer’s legal matters that are the subject of this engagement directly or indirectly may have federal, state or local income tax implications or consequences to Employer (including, but not limited to, the tax deductibility of any fees paid). Due to the inherently complex nature of tax issues and how such issues may be related to individual circumstances, Geeks do not undertake to provide or render tax advice on any matter, and have no implied obligation to do so (even if a Geek has previously provided tax advice to an Employer on other specific matters) unless an Employer expressly asks for such advice and a Geek expressly agrees to give it. Otherwise, all parties will assume that an Employer’s own individual tax advisor(s) will provide all tax advice to the Employer as such Employer may require under the circumstances, even if a Geek has previously provided tax advice on other specific matters.
Termination or Withdrawal of Representation
Employer may reject and/or terminate its representation by any one or more Geeks at any time by informing ERISAfire of its decision to reject and/or terminate representation by any one or more Geeks. ERISAfire will make reasonable efforts to accommodate such rejection or termination, but such rejection or termination may result in deactivation of the Employer organization from the Services. Employer’s termination of legal representation by a Geek will not affect an Employer’s or Consultant’s liability for Service fees.
Employers may freely engage Geeks outside of the Services; however, such outside engagement by Employers of Geeks shall be on terms established by the Geek and Employer and shall be completely independent of ERISAfire and Consultants.
Circumstances also may permit or require that a Geek terminate its engagement and withdrawing from the legal representation. The reasons may include breach of an Employer’s duties and obligations under this Agreement, events or circumstances that would make such Geek’s continued representation improper, or other circumstances that, under rules governing the conduct of attorneys, would require or permit a Geek’s withdrawal. If permission for withdrawal is required by the rules of a court, the Geek shall request the court's permission; Employer will be notified of the request and will be allowed an opportunity to object.
Geek Document Retention Policy
All Geeks agree to accept the following minimum standards of document retention and destruction. At the conclusion of each engagement, Geeks shall retain their legal files for a period of seven (7) years after disengagement. At the expiration of the 7‐year period, Geeks shall be permitted to, but are not obligated to, destroy these files unless an Employer notifies ERISAfire in writing that it wishes to take possession of them. ERISAfire shall then notify all affected Geeks of such Employer’s election. Geeks and ERISAfire reserve the right to charge administrative fees and costs associated with researching, retrieving, copying and delivering such files.
The State Bar of Texas requires that Geeks provide the following information: The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar’s Office of Chief Disciplinary Counsel will provide you with information about how to file a complaint. For more information, call toll-free 1-800-932-1900. The Supreme Court of Texas requires that all attorneys in Texas follow the Texas Lawyers Creed. Section II(1) of this creed requires that we advise you of its contents at the time of our undertaking representation. A copy of the Texas Lawyers Creed is available by visiting www.texasbar.com/AM/Template.cfm?Section=Ethics_Resources&Template=/CM/ContentDisplay.cfm&ContentID=.... Please contact a Geek if you have any questions about this notice.
No Duty to Supervise Geeks
The parties acknowledge and agree that neither ERISAfire nor Consultants nor Consultant Users have any duty to supervise or to review, approve or select Geeks or Geek Users. Employer accepts sole responsibility for vetting and approving the Geeks and Geek Users from which and from whom it desires legal representation.
Consultants Do Not Give Legal Advice; Geeks Do
Consultants are not law firms, and Consultant Users are not lawyers; they do not give legal advice. Similarly, ERISAfire is not a law firm and does not provide legal advice. Consultant Users who are lawyers are attorneys representing the Consultant, and in that capacity they do not represent any Employer or Employer User.
The parties agree that neither ERISAfire nor Consultants shall have any responsibility for the advice of Geeks or Geek Users (including advice authored by a Consultant that is approved and thus adopted by a Geek User) and that neither ERISAfire nor Consultants shall have any duty of supervision or review, approval or selection of Geeks or Geek Users. Employer accepts full responsibility for vetting and approving representation of it by any Geek or Geek User.
Legal Information vs. Legal Advice
Blog posts and email alerts, newsletters and bulletins (“Consultant Content”), in all cases regardless of authorship, are merely news and information on employee benefits compliance provided for informational purposes only (i.e., general legal information) and should not be considered legal advice. Consultant Content is the responsibility of the Consultant posting such content (or permitting such content to be posted). Neither ERISAfire nor any Geek is responsible for any Consultant Content. No User should act on the information contained in any such materials without first consulting legal counsel.
Consultant acknowledges that communications on the Services may be subject to the attorney-client privilege and/or attorney-client confidentiality. As such, Consultant shall not share communications or content of communications with any person not party to the communication. (For purposes of clarification, and without limiting the generality of the foregoing, this means Consultant cannot share a compliance question and answer regarding one client-employer with another client-employer.) Consultant shall not in any way circumvent the permissions protections or other measures put in place to ensure proper attorney review, editing and approval of compliance question and answer content.
No Attorney Advertising
The parties acknowledge and agree that neither Consultant Content nor publicly viewable content authored by Geeks is intended to be attorney advertising, and none of the lawyers who might author such content desire to represent anyone desiring representation based upon viewing such content. Geeks shall not, under any circumstances, use the Services or any Consultant Content to advertise or otherwise solicit business.
No Duty to Supervise Consultant
The parties acknowledge and agree that neither ERISAfire nor Geeks nor Geek Users have any duty to supervise or to review, approve or select Consultants or Consultant Users. Employer accepts responsibility for vetting and approving the Consultant with which it is associated.
Software Tools Are As-Is Services of ERISAfire
The Services provided by ERISAfire may include a computerized tool for generating an Employer-specific custom calendar of events for Employers whose benefit plan features are uploaded to the Services platform, a computerized tool for generating ERISA or other plan documents and/or other computerized compliance tools ("Compliance Software Tools"). The Compliance Software Tools are provided directly to Employers by ERISAfire and not by Consultants or Geeks; Employers agree that neither Geeks nor Consultants are responsible for their content or function.
The Compliance Software Tools are provided as-is. The Compliance Software Tools are intended only to be a starting point for Employers. Employers are responsible for reviewing and approving the final output of the Compliance Software Tools before relying upon them or otherwise using them. ERISAfire makes no guaranty, warranty or representation to any party, including Employer, that the Compliance Software Tools are free from bugs, entirely comprehensive or in any way should be used or relied upon as a principal or primary tool for compliance with law.
Limitation of Liability
To the fullest extent permitted by law, ERISAfire and its affiliates, suppliers and distributors make no warranties, either express or implied, about the Services. The Services are provided “as-is.” ERISAfire disclaims any warranties of merchantability, fitness for a particular purpose and non-infringement. To the fullest extent permitted by law, in no event will ERISAfire, its affiliates, suppliers or distributors be liable for any indirect, special, incidental, punitive or exemplary or consequential damages or any loss of use, data, business or profits, regardless of legal theory, whether or not ERISAfire has been warned of the possibility of such damages, and even if a remedy fails of its essential purpose.
ERISAfire’s aggregate liability for all claims relating to the Services shall in no event exceed the greater of $500 or the amount paid to ERISAfire by or on behalf of the damaged Employer(s) for the twelve (12) months preceding the Services in question.
The foregoing limitation of liability shall not be interpreted as reducing or relieving any Geek or Consultant of its responsibility for professional liability.
Grant of License
Except as otherwise granted in a written agreement with ERISAfire, neither User nor the User’s User Organization has any rights, title, interest or ownership in, or to, the Services, or any feature or portion thereof, and/or any ERISAfire software or system, nor do they have the right to copy, distribute, reproduce, alter, display or use the Services, items, content, software, system or any of ERISAfire’s or its affiliates’ intellectual property for any other purpose. If User or User Organization suggests any alteration to any of ERISAfire’s software or services, the User or User Organization’s suggestion becomes ERISAfire’s property, and ERISAfire shall be able to user the suggestion or alternation as it may deem fit. The Services are licensed and not sold. ERISAfire retains all right, title and interest to the Services, including all patents, copyrights, trademarks, and trade secrets contained therein.
The above license is provided in exchange for the fees provided in a separate agreement between ERISAfire and Consultant or between ERISAfire and Employer, as the case may be. ERISAfire may, at its election, deactivate User accounts and/or terminate the Services if ERISAfire is not timely paid such fees when due.
The Services include a number of communications services including comment threads, blog posts, question and answer products, customer service communication forums, calendars, and other message services. User agrees to use the Services only to post, send and receive messages or materials proper to and related to the intended use of the Services. When using the Services, User agrees that it will not do any of the following:
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others.
Publish, post, upload, distribute or disseminate any names, materials or information that is considered inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful.
Create a false identity, represent oneself as someone else, or sign an agreement as someone else or on behalf of someone else or otherwise falsify or delete in an uploaded file any significant attributions or notices.
Upload files that contain software or other material protected either by intellectual property laws or by the rights of privacy or publicity except when (i) User or the Employer, Consultant or Geek of which such User is an employee or agent owns or controls the necessary rights, or (ii) User or the Employer, Consultant or Geek of which such User is an employee or agent has received all necessary consents to do so.
Use the Services or any system accessed through the Services to disrupt, disable or otherwise harm the operations, software, hardware, equipment and/or systems of a business, institution or other entity, including, without limitation, exposing the business, institution or other entity to any computer virus, trojan horse or other harmful, disruptive or unauthorized component.
Restrict or inhibit any other user from using and enjoying the Services.
Reverse engineer, reverse compile, decrypt, disassemble or otherwise attempt to derive the source code of the Services.
Harvest or otherwise collect personally identifiable information about others, without their consent.
Embed the Services in any third-party applications, unless otherwise authorized in writing in advance by ERISAfire.
Violate any applicable laws or regulations, including copyright, trademark and patent laws.
User agrees that, by continuing to maintain an active account, he or she may receive communications from ERISAfire, such as email previews of content, account reminders and Service updates. The aforementioned consent may be revoked by requesting deactivation of the User’s account on the Services by sending deactivation notice to email@example.com.
ERISAfire reserves the right to downgrade or terminate any User’s access to the Services for cause at any time without prior notice. For example, ERISAfire may suspend or terminate use of the Services by a particular User if such user is not complying with the limitations on use of the Services, or if such user is using the Services in a manner that would expose ERISAfire or another party to legal liability, disrupt the Services or disrupt others' use of the Services. If ERISAfire so elects to terminate a User’s account, ERISAfire will provide that user with notice at his or her registered email address.
Users acknowledge that they are providing certain personal information to ERISAfire, which is available to it and some of its technology vendors, including Amazon Web Services and Salesforce.com through its service Heroku. Such personal information includes, but is not limited to, first name, last name, password, email address, company for which the User works and other profile information.
Trade Secrets and Confidentiality
The provisions of this Section shall survive termination of this Agreement.
Maintenance of Professional Certifications and Licenses
Consultants and their Users, and Geeks and their Users, represent and warrant that they currently have, and for so long as they are Users or have Users registered with the Services shall maintain, all professional certifications and licenses necessary and proper for them to render the advice and do the tasks for which they are using the Services. Without limiting the generality of the foregoing, Geek Users shall at all times maintain active licenses to practice law in all states necessary to use the Services as intended, and Consultant Users shall at all times maintain active insurance agent licenses in all states necessary to use the Services as intended. Geek and Consultant Users shall inform Employers of any discipline by any licensing or certifying body or agency of such User or his/her User Organization. Geek and Consultant Users shall at all times abide by all applicable professional responsibility, licensure and credentialing rules and regulations. Notwithstanding the foregoing, the parties agree and acknowledge that ERISAfire has no duty to monitor or supervise licensure or discipline of any Geek, Consultant or User; Employers, Geeks, Consultants and their respective Users shall each be responsible for such monitoring and supervision for him, her or itself.
No Third-Party Beneficiaries
ERISAfire shall not be liable for damages for any delay or failure of delivery arising out of causes beyond its reasonable control and without its fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks or communications failures.
Waiver, Severability and Assignment
Binding Effect; Benefit
This Agreement will inure to the benefit of and bind the Parties and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, may be construed to give any Person other than the Parties and their respective successors and permitted assigns any right, remedy, claim, obligation or liability arising from or related to this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the Parties and their respective successors and permitted assigns.