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Service Agreement

THIS SERVICE AGREEMENT (“Agreement”) is made and entered into as of the Effective Date, by and between Agency Compass, LLC (“Company”), and the Client, each being referred to individually as a “Party,” and collectively as the “Parties” throughout this Agreement (the capitalized terms Effective Date and Client are defined and identified in the Agency Compass Term Sheet and Order For Services (“Order Form”), which is attached hereto and incorporated herein).

 

RECITALS

                WHEREAS,Company is in the business of providing hosted web application solutions for the purpose of managing insurance agencies (the “Services”);

            WHEREAS, Client desires toengage Companyfor the purpose of Company providing the Services, and Company desires to provide the Services for Client on the terms and conditions as set forth in this Agreement; and;

            WHEREAS, Company and Client agree that this Agreement shall apply to all such future services.

            NOW, THEREFORE, in consideration of the foregoing and mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Client hereby agree as follows:

  1. Services

                 1.1       Included Services.Company agrees to provide Client access to Company’s proprietary “Agency Management Software,” hosted by Company on Company’s own servers (the “Software”), which Software shall include the following features accessible by Client (as updated by Company from time to time pursuant to Company’s sole discretion):

  • Reporting Dashboards
  • Quote Management
  • Lead Management
  • Document Storage
  • Email Functionality via Integration with Customer’s Office 365
  • Invoicing And Payments
  • Premium And Commission Tracking
  • Rater Integration

            Client acknowledges and agrees that the Software constitutes products of Company protected under applicable law. Client further acknowledges and agrees that all right, title, and interest in and to the Software (including, without limitation, any images, photographs, animations, video, audio, music, text, custom enhancements, and/or other underlying materials incorporated into the Software) and documentation, including associated intellectual property rights, are and will remain the sole and exclusive property of Company. Company will have sole and exclusive ownership of any custom enhancements, all media and documentation relating to custom enhancements (including their development, or their operation, testing or use, and all reports and copies thereof), and all intellectual property rights associated therewith (including, without limitation, rights to copyrights, trade secrets, or know-how).  Company may make the custom enhancements available to Client via updates provided from time to time, in accordance with Company’s sole discretion.

            The Software consists of software that runs on a server operated by Company that shall be accessible to Client via the internet. Subject to the terms and conditions of this Agreement, and payment of the applicable fees set forth in this Agreement, Company hereby grants Client a nonexclusive, nontransferable, non-sublicensable license to use the Software solely in connection with Client’s business, which license includes Client’s ability to access Company’s data center hosting the Software and Client’s data via in-bound internet connectivity pursuant to the Software documentation and Company’s security requirements. Client acknowledges that use of the Software, including, but not limited, Company’s collection of data pertaining to Client’s use thereof, shall be subject to the terms set forth in this Agreement, and any other terms and conditions adopted by Company for Client’s use of the Software and/or Services provided by Company.

            1.2       Additional Services – Client acknowledges that Company may provide additional add-on options/features upon request from Client (“Additional Services”). In the event Client requires or requests Additional Services, Client shall pay for such Additional Services pursuant to the set cost(s) (or pro rata portion thereof) made known from Company to Client prior to the commencement thereof. If such request for Additional Services is made after the commencement of this Agreement, no such addition and/or customization shall be made until: (i) Company’s approval; (ii) Client’s execution of a new Order Form; and (ii) Client’s payment of invoice within thirty (30) days after receipt of such invoice, or on the commencement date specified in the Order Form, if such date is earlier.

  1. User Agreement

                 By installing, accessing, or otherwise using the Software and/or Services, Client agrees to be bound by the terms of this Agreement. Client agrees to use the Software in accordance with all applicable laws and regulations, and to comply with all applicable rules incorporated by Company regarding use of any system’s networks accessed via the Software. Client further agrees that by using the Software, Client shall not engage in any of the following, including but not limited to:

  • Transfer, rent, lease or sublicense the Software to another person or company without the express written consent of Company;
  • Modify, copy, reverse engineer, decompile, disassemble, rent, lease, or transfer the Software;
  • Disable any licensing or control features of the Software;
  • Tamper with, compromise, or attempt to circumvent any physical or electronic security or audit measures employed by Company in the Software and/or Company’s systems, network devices, and/or business operations;
  • Remove any of the copyright or trademark notices from the Software; and
  • Export or re-export the Software or right to access and/or use the Software to any country, person, entity, or end-user subject to U.S. export restrictions.

            The foregoing list does not constitute an exhaustive list of prohibited uses. In the event Client commits any of the foregoing, and/or engages in any other act that may damage and/or affect Company’s ability to provide the Software and/or Services, Company shall have the right to immediately terminate this Agreement upon written notice to Client. In the event of termination, all licenses and/or rights granted for Client’s use of the Software and/or Services shall be immediately terminated.

  1. Data Collection

                 Client shall own all rights in and to any data inputted by Client via the Software. Client acknowledges use of the internet comes with inherent risk, and that Company is not responsible or liable for any errors, omissions, delays, losses (including, but not limited to, loss of data), and damages to software and/or hardware resulting from Client’s use of the Software.

Client hereby acknowledges that Client is solely responsible for maintaining each of the following:

  • Security measures for the protection of Client’s account and/or password information required in order to use the Software;
  • Installing proper operating computers and/or operating systems compatible with the Software;
  • Measures to ensure the accuracy and security of data inputted via the Software; and
  • Procedures to identify and correct errors, omissions, loss data, and/or replace data, including, but not limited to, utilizing and/or implementing measures to ensure data is backed up and/or properly protected from defects and/or malfunctions.

            Client acknowledges that Company may collect anonymous usage data as a result of Client’s use of the Software. Anonymous usage data may include, but is not limited to, instances when the Software is accessed, launched, and/or quit; the types of features used and frequency thereof; information on errors; the type and version of the operating system and/or internet browsers used to access the Software; and diagnostics data for Software support purposes. All use of anonymous usage data shall be made for Company’s legitimate business purposes, including, but not limited to, improving and/or enhancing the Software, and in no event shall anonymous usage data be tied to Client’s personal identifiable information. Company shall be the sole owner of all anonymous usage data collected from Client’s use of the Software.

  1. Work Provisions

            4.1       Independent Contractor.For all purposes hereof and in the performance of its obligations under this Agreement, Company is and shall remain an independent contractor and nothing in this Agreement shall be deemed or construed to create an employer/employee, joint venture, or partnership relationship between Company and Client. Neither Party shall have any authority to insure any obligations on behalf of the other Party or to make any promise, representation, or contract of any nature on behalf of the other Party.

            4.2      Non-Exclusivity.Client recognizes that Software and/or Services provided to Client under this Agreement are provided on a non-exclusive basis. Company may perform similar services from time to time for other persons, and this Agreement shall not prevent Company from performing such similar services for such other persons.

 

            4.3      Ownership.Except as otherwise set forth herein, the entire right, title, and interest in and to the Software, including, without limitation, the software, documentation, source code, and all modifications to the foregoing, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all intellectual property rights such as copyrights, patent, and trade secret rights, are the exclusive property of the Company.

  1. Warranties and Indemnification

            5.1       Software Updates.Company will use reasonable efforts to provide Client with updates to the Software from time to time, the schedule and content of any updates to be determined pursuant to Company’s sole discretion. These updates may include new features (or remove existing features) as determined by Company. In no event will Company be obligated to provide Client updates to the Software. Notwithstanding the foregoing, Company reserves the right to perform maintenance and required repairs at any time if required to maintain proper upkeep of the Software.

            5.2      Warranty of Services and Software.THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT WHEN OTHERWISE STATED IN WRITING THE MATERIALS PRODUCED UNDER THE TERMS OF THIS AGREEMENT ARE PROVIDED TO CLIENT “AS IS,” THAT IS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. Notwithstanding, Company warrants the Software against Defects for a period of three (3) months from date of Client’s acceptance of the Software (“Warranty Period”). The foregoing warranty entitles client to correction of Defects reported by client during the Warranty Period with respect to the latest version of Software delivered to CLIENT by Company hereunder, but does not include (i) correction of problems or issues related to client’s information technology infrastructure, (ii) any modifications to the Software made by or on behalf of client by a party other than Company, or (iii) new, additional functionality beyond the scope of the Software ORIGinally provided under this agreement.

 

            EXCEPT AS OTHERWISE STATED ABOVE, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES RELATED TO INFORMATION OR BUSINESS ADVICE PROVIDED, WARRANTIES RELATED TO OUTCOMES BASED ON INFORMATION OR ADVICE PROVIDED, WARRANTIES OF MERCHANTABILITY OR MERCANTILE QUALITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR USE, WARRANTIES OR CONDITIONS ARISING BY STATUTE OR OTHERWISE IN LAW, OR WARRANTIES OF ANY PRODUCTS OR SERVICES PROVIDED BY THIRD PARTY VENDORS.

            THE PARTIES AGREE THAT NEITHER PARTY’S LIABILITY FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WILL EXCEED THE FEES PAID OR TO BE PAID BY CLIENT UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF USE OF ANY SOFTWARE OR HARDWARE, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST DATA, LOST PROFITS OR REVENUE, OR FOR ANY CLAIM OR DEMAND BY ANY THIRD PERSON, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF ADVISED OF THIS POSSIBILITY.

            5.3      Client Indemnification. Client shall defend, indemnify and hold harmless Company and its directors, managers, members, officers, employees, agents, successors, and assigns (“Company Indemnities”) from any and all losses, liabilities, damages, judgments, awards, expenses, claims, actions, lawsuits and costs, including reasonable attorneys’ fees (collectively, “Losses”) arising out of injury or death to persons, or damage to property, resulting from or pertaining to (i) Client’s use of the Software, and/or (ii) Client’s breach of Client’s of the terms set forth in this Agreement.

            5.4      Indemnification For Infringement Claims. Company shall defend, indemnify and hold harmless Client and its directors, managers, members, officers, employees, agents, successors, and assigns (“Client Indemnities”) from any and all Losses that arise in connection with any third party claim that the Softwareinfringes the intellectual property or proprietary rights of a third party. If any part of the Software is, or may become, the subject of any such proceeding, Company may at its expense and option do one of the following: (i) procure for Client the necessary rights to continue using the Software; (ii) replace or modify the infringing portion of the Software with a functionally equivalent item or portion thereof, or (iii) if none of the foregoing are commercially reasonable, terminate Client’s right to use the Software.

            Notwithstanding the foregoing, Company shall not have any liability to Client to the extent that any infringement or claim thereof is based upon: (i) the combination, operation, or use of the Software in combination with any data, equipment, or software not supplied by Company; (ii) use of the Software in a manner for which it was not designed or contemplated, or (iii) modifications to the Software by anyone other than Company.

  1. Fees, Invoices, Payment

            6.1       Fees. Client shall pay Companyfor use of the Software in accordance with Client’s executed Order Form for the Services (“Fees”), as referenced in the Order Form attached hereto and incorporated herein (as amended from time to time). All fees will be paid in U.S. Dollars. Client agrees to participate in Company’s monthly billing process in order to use the Software. Failure to participate in the monthly billing process may result in loss of Client’s license and Client’s ability to use the Software as set forth in this Agreement. Client acknowledges and agrees that following the expiration of the Initial Term and/or prior to the commencement of any Renewal Term, Company may increase the Fees by an amount as determined in Company’s sole discretion. Company shall provide Client with written notice of any such increase at least thirty (30) days prior to the date such increase will take effect.

 

            6.2      Invoices/PaymentCompany shall invoice Client on a monthly basis for Fees. All Fees will be handled on a prepaid basis on the first of the month. If the first day of the month falls on a weekend/holiday, the charge will be processed on the next business day. Failure to make timely payments may result in the interruption of Client’s use of the Software. Company will not be responsible for any interruptions to Client’s communications or loss of business incurred for any reason whatsoever, and Company reserves the right to terminate Client’suse of the Software at any time as a result of non-payment in accordance with Section 7.2 below.

  1. Term and Termination

            7.1       Term. This Agreement shall commence on the Effective Date, and shall remain in full force and effect for the period of time stated in the Order Form (“Initial Term”). Following the expiration of the Initial Term, Client shall have the option to renew this Agreement, on the same terms and conditions set forth herein, for such additional periods set forth in the Order Form (each, a “Renewal Term”), unless otherwise terminated by either Party in accordance with Section7.2, 7.3, or Section 7.4 of this Agreement. The Initial Term and each Renewal Term shall be referred to herein as the “Term.”In the event that the Order Form indicates that the Term of this Agreement is “Month to Month”, then this Agreement shall automatically renew every month until it is otherwise terminated by either Party in accordance with Section 7.2, 7.3 or 7.4.

            7.2       Breach.If Client fails to make a monetary payment as specified in this Agreement, Companymay notify Client of such failure in writing and if Client fails to cure such breach within fifteen (15) days, Company may immediately terminate this Agreement. Either Party may terminate this Agreement upon written notice to the other Party if the other Party breaches this Agreement and the breaching Party fails to cure such breach within thirty (30) days (except in the instance of Client’s non-payment, as separately governed herein) of receiving written notice from the non-breaching Party detailing such breach. Any failure by the Client to cure a breach under this Section 7.2 shall be considered a material breach of this Agreement.

            7.3       Continuation. This Agreement shall remain in full force and effect and govern the Services provided to Client by Company during the Term until,whichever comes first, (i) this Agreement is terminated in accordance with the terms set forth herein,(ii)the Client does not use the Services for a three (3) month period, or (ii) the Parties mutually agree otherwise. Any failure by Client to not use the Services for a three (3) month period shall be considered a material breach of this Agreement.

            7.4      Termination; Cancellation Fee. Either Party may terminate this Agreement upon: (i) thirty (30) days’ written notice to the other Party for Month to Month Term contracts; or for non-MonthtoMonth Term contracts (ii)ninety (90) days written notice to the other Party; provided, in the event Client terminates this Agreement during the Initial Term, for any reason unrelated to Company’s breach of this Agreement that is not cured by Company within thirty (30) days following Client’s delivery of written notice thereof, Client acknowledges that such action shall cause Company severe and substantial damage and loss of types and in amounts that are impossible to compute and/or ascertain with certainty as it relates to the determination of actual damages. Client, therefore, agrees that in the event of Client’s termination of this Agreement prior to the expiration of the Initial Term (except for Company’s uncured breach), Company shall be compensated by payment of liquidated damages set forth herein. Client represents that the liquidated damages constitute a fair, reasonable, and appropriate estimate thereof. Accordingly, Client agrees that in the event of Client’s termination of this Agreement prior to the expiration of the Initial Term (except for Company’s uncured breach), Client shall pay Company liquidated damages which shall be the dollar-amount per user as stated in the Order Form per each month for the remainder of the Initial Term. Client acknowledges such liquidated damages are intended to represent estimated and actual damages and are not intended to be a penalty or punishment. In the event that the foregoing “liquidated damages” shall be deemed unenforceable by a court of law, Client understands that it shall be held liable for any and all damages suffered by Company.

 

            Upon expiration or termination of this Agreement for any reason: (a) Client shall immediately pay to Company all amounts owed to Company pursuant to Section 6 hereof for Services performed and incurred prior to the date of termination; and (b) each Party shall immediately cease all use of and shall return to the other Party within five (5) business days all Confidential Information (as later defined) and materials of such other Party and all copies, portions and abstracts thereof, that are in its possession or under its control, other than any materials for which Client has paid or agrees to pay.  All licenses granted by Company to Client shall immediately terminate upon the termination of this Agreement.

  1. Confidentiality

            8.1       ConfidentialInformation.In connection with this Agreement, each Party may disclose, or the other Party may learn of or have access to, certain confidential proprietary information about the other Party’s business and/or owned by the other Party or its affiliates, business partners or clients (“Confidential Information”). Confidential Information includes, but is not limited to, any personal data or information, oral or written, that relates to the disclosing Party or any of the disclosing Party’s existing or contemplated business activities, technology, developments, software, methods, trade secrets, insurance carrier information, and clients. Confidential Information also includes the terms of this Agreement and the Services.

            8.2      Public Domain. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed, (ii) is or becomes publicly available or enters the public domain through no fault of the receiving Party, (iii) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto, (iv) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto, (v) is independently developed by the receiving Party without use of any Confidential Information or (vi) is approved for release or disclosure by the disclosing Party in writing without restriction.

 

            8.3      Limitation of Disclosures.During the Term and for all periods thereafter, Company shall maintain the Confidential Information in strict confidence and shall not disclose, publish or copy any part of the Confidential Information. Company shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement. Company shall not use the Confidential Information, or any portion thereof, for its own benefit or for the benefit of any third-party.  Company shall take all necessary precautions in handling the Confidential Information and limit disclosures on a strict need-to-know basis. However, Company may disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided thatCompany gives reasonable prior notice to Client to contest such order or requirement. Upon the termination or expiration of this Agreement, Company shall return to Client or certify the destruction of all Confidential Information.Company is responsible for any actions of its personnel, agents, or employees in violation of this section. Upon request, Company shall return or destroy all Confidential Information furnished by Client, without retaining any copy thereof.

 

  1. General Provisions

            9.1       Notices.All notices required shall be in writing and shall be effective on the date of mailing to the Parties at the addresses previously indicated, to the attention of the signers of this Agreement, or to such other address as designated by the Parties in writing, and sent via registered U.S. mail, or by a mutually recognized overnight delivery service. The Parties agree that email shall constitute sufficient notice under this Agreement.

            9.2      Severability. Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provisions(s) held to be invalid or unenforceable.

 

            9.3      Waiver.The waiver of a breach of this Agreement or the failure of a Party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.

 

            9.4      Force Majeure.Neither Party shall be responsible for any failure to perform, or delay in performing any of its obligations under this Agreement, where and to the extent that such a failure or delay results from causes outside the reasonable control of such Party. Such causes shall include, without limitation, delays caused by the other Party, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, pandemics, quarantine restrictions, freight embargoes, strikes, hardware and/or software failure,interruption of service, third party services, civil commotion, or the like.

 

            9.5      Headings.Section headings are for the convenience of the Parties and should not be construed as part of this Agreement.

 

            9.6      Governing Law.This Agreement shall be deemed executed in, and governed by, the laws of the State of Florida. For purposes of enforcement of arbitration awards, equitable relief, or if for any other reason litigation is permissible under this Agreement, each Party hereby irrevocably agrees to the personal jurisdiction and venue of any court located in Broward County, Florida.

 

            9.7 Survival.The provisions of Sections 4, 5, and 8 shall survive the expiration or termination of this Agreement. All other provisions of this Agreementthat by their terms or import are intended to survive such expiration or termination, shall survive.

 

            9.8      Entire Agreement. This Agreement supersedes all prior oral or written representations, communications, or agreements between the Parties, and, together with any appendices, constitutes the final and entire understanding of the Parties regarding the subject matter of this Agreement. Neither Party has relied on any such prior oral or written representations, communications, or agreements. Company reserves the right to (i) amend and/or modify this Agreement, (ii) amend and/or modify the materials referenced herein, and/or (iii) impose new conditions on Client’suse of the Software at any time by providing Client with written notice of such amendments, modifications, and/or new conditions. Any further use of the Software following receipt of such notice shall constitute acceptance of such amendments, modifications, and/or new conditions.

 

            9.9      Disputes. Any controversy or claim between the Parties shall be settled first by negotiation between the Parties’ respective designees. In the event the designees are unable to resolve the dispute in a reasonable period of time, the Parties agree to settle the dispute via arbitration before a single, mutually agreed upon arbitrator under the then-current rules of the American Arbitration Association. The decision and award of the arbitrator shall be final and binding and the award so rendered may be entered in any court having jurisdiction thereof. Each Party shall pay its own costs and expenses related to the arbitration, and shall split the cost of the arbitrator. The arbitrator will have no authority to award punitive or other non-compensatory damages to either Party. No damages excluded by or in excess of any damage limitations set forth in this Agreement shall be awarded.

            9.10    Execution. This Agreement may be executed (including by facsimile or internet-based service) by one or more of the Parties on any number of separate counterparts in the Order Form. All of such counterparts taken together shall be deemed to constitute one and the same instrument, and (if by facsimile) each such facsimile shall have the same force and effect as if an original.

 

  1. Additional Notice

 

This product incorporates licensed copyrighted and other proprietary material OF ACORD CORPORATION, including ACORD standardized forms. acord FORMS are licensed by acord, not sold.

 

you ACKNOWLEDGE AND AGREE THAT YOU must BE PARTY TO a WRITTEN license AGREEMENT DIRECTLY WITH acord corporation in order to use THE acord forms CONTAINED IN THIS PRODUCT, and represent and warrant that you will obtain such a license prior to using acord forms. neither THe provider of this product, nor any third party, can grant licenses to use acord forms. you can obtain a license AGREEMENT permitting you and your users to use acord forms, which may REQUIRE YOU TO PAY FEES to acord, by contacting acord at +1-845-620-1700 or through the additional contact information available at www.acord.org.

 

ACORD FORMS are modified periodically to reflect changing legal, industry and other requirements. the acord FORMS contained in this PRODUCT MAY NOT BE THE MOST CURRENT MATERIALS THAT ACORD PUBLISHES. 

 

using OUTDATED ACORD FORMS MAY BE prohibited in certain cases by government regulators and increases the risk of legal action by insureds and other third parties.

 

It is solely your responsibility to confirm that you are USING only the most current FORMS that acord publishes. You may determine the currency or non-currency of ACORD FORMS by consulting the forms inFORMATION SECTION OF acord’S wEBSITE (www.acord.org).

 

ACORD is an intended third-party beneficiary of the above provisions. The above provisions are made expressly for the benefit of, and are enforceable by, ACORD. The name ACORD and the ACORD logo are registered marks of ACORD Corporation.