These Dealer Terms and Conditions are incorporated by reference into the Insurify Order Form for Dealers (“Order Form” and, collectively with these Terms and Conditions, this “Agreement”), executed between the Dealer identified on the applicable Order Form (“Dealer”) and Insurify, Inc. (“Insurify”). This Agreement replaces all previous Agreements between Insurify and Dealer. Dealer and Insurify shall each be referred to individually as a “Party” and, collectively, the “Parties.”
WHEREAS, Dealer is engaged in the business of selling and leasing motor vehicles, in connection with which Dealer offers for sale certain other products and services (e.g., vehicle service contracts); and
WHEREAS, Insurify is engaged in the property-casualty insurance business and has a web-based insurance marketplace platform for comparing insurance products on behalf of customers (the “Platform”); and
WHEREAS, Insurify has entered into an agreement with Dealer’s Service Provider to integrate Insurify’s offering with the Service Provider’s offerings to Dealer’s customers whereby customers are directed to Insurify’s Platform to purchase insurance products (the “Services”); and
WHEREAS, Dealer wishes to make available the Services to Dealer’s customers as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and of the mutual covenants of the Parties outlined in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1.1 “Data” means any Dealer, customer or other data and information provided by Dealer, or a third-party on behalf of Dealer, to Insurify under this Agreement, including, but not limited to, Protected Data (as defined in Section 8.2).
1.2 “Service Provider” is a provider of finance, insurance and/or other products to Dealer and chosen by the Dealer, as indicated on the Dealer’s Order Form, to support the Dealer in use of the Services.
1.3 “Marketing Materials” may include texts, emails, phone calls, social media ads and messages, printed and electronic campaigns that are used by Insurify to provide information to Dealer’s customers and prospective customers about Insurify and Insurify’s Platform, as well as any link(s) (including the Links defined in Section 9.1.1) to Insurify’s Platform. Marketing Materials may include the Dealer’s name and logo and other identifying information. Dealer shall not edit any Marketing Materials provided by Insurify without Insurify’s written permission or use Marketing Materials related to the Platform and the sale of insurance without prior written approval from Insurify.
2. LICENSE & LIMITATIONS
2.1. License Grant. Subject to the terms and conditions of this Agreement (including any restrictions applicable based on Service Provider’s agreement with Dealer and Insurify respectively), Dealer grants to Insurify a limited, non-transferable, non-exclusive license to integrate the Services with the Service Provider’s offering to Dealer during the term of this Agreement and to access certain Dealer customer information as necessary to provide the Services (the “License”). In conjunction, Insurify hereby grants to Dealer a limited, non-transferable, non-exclusive license to display its trademarks, logos, and links to the Platform to Dealer’s customers as part of the integrated offerings and the Services during the term of this Agreement (the “Reciprocal License”).
2.2.1 The Platform contains materials (including but not limited to programs, methods, designs and screen formats) owned by Insurify and/or third parties (“Third Party Suppliers”) and licensed to Insurify (collectively, “Insurify Materials”). Insurify and Third-Party Suppliers retain full and exclusive right, license, title and ownership in and to the Platform and Insurify Materials, their separate elements and all intellectual property rights associated therewith, including all derivative works regardless of their origin.
2.2.2 Any right not specifically granted to Dealer herein is reserved to Insurify.
2.2.3 No ownership interest in the Platform or any element thereof is conveyed by this Agreement, regardless of whether Dealer, any affiliate or subsidiary of Dealer, or any employee or agent of Dealer, its affiliates, or subsidiaries suggests adding or modifying a feature or element or is involved in the development, improvement or testing of any feature or element.
2.3 Limitations. The License is subject to the following specific limitations:
2.3.1 Dealer shall refrain from any and all efforts, direct or indirect, to reverse engineer the Platform or to develop any derivative or competitive work of any kind.
2.3.2 Insurify reserves the right to update, modify or remove functionality at Insurify’s discretion. Insurify will provide advance notice of changes in functionality that will impact Dealer’s customer’s access to the Platform.
3. FEES AND PAYMENT TERMS
3.1 Payment of Referral Fees.
3.1.1 Any agreed upon referral fees to be paid by Insurify and/or the Service Provider to the Dealer in exchange for a Dealer customer referral will be outlined on the Order Form (“Referral Fees”). Any Referral Fees will be based upon the agreed upon criteria set forth in Order Form or other agreement between the relevant parties. The entitlement to, or payment of, any Referral Fees with respect to any Dealer customer is and shall remain unrelated to any sale of an insurance policy to such customer unless Dealer is a licensed insurance producer in the relevant territory where the referral occurs.
4. DEALER RESPONSIBILITIES
4.1 Dealer Customer Data.
4.1.1 Through the Dealer CRM integration, Insurify will receive data fields such as first name, last name, address, email address, phone number and car details, in order to prepopulate the Insurify flow.
4.1.2 Prior to Insurify receiving any Dealer Customer Data, Dealer shall first obtain the appropriate written or digital authorization of Dealer’s customers (or other applicable third party) as prescribed by all applicable federal, state and local laws, rules and regulations. This includes any Data provided to Insurify by a third party authorized by Dealer. Such written or digital authorization shall include the ability for Insurify to perform its obligations under this Agreement, including to pre-fill Insurify’s Platform, to use the Data to improve Insurify’s products and processes, conduct analyses, and otherwise as authorized herein.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement shall commence on the Effective Date of the Order Form and continue and shall continue until terminated as provided herein.
5.2 Termination. Either Party may terminate this Agreement for any reason upon providing the other Party with ten (10) days’ advance written notice of termination. Either Party may terminate this Agreement immediately upon the occurrence of any of the following events: (i) the other Party has failed to cure a breach of this Agreement within fifteen (15) days after receiving written notification thereof; (ii) the other Party institutes, or has instituted against it, proceedings under bankruptcy or insolvency laws, for corporate reorganization, receivership, dissolution or similar proceedings; (iii) the other Party makes a general assignment for the benefit of creditors, or becomes insolvent; (iv) the other Party ceases to conduct business or to conduct the business relevant hereunder, or (v) there has been no use of the Platform by the Dealer for a period of ten days.
6.1 Limited Warranty. Insurify warrants that it has the full power, authority and right to license such Platform in the manner set forth in this Agreement.
6.2 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR TO THE EXTENT REQUIRED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PLATFORM OR API MATERIALS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY DEALER, INSURIFY OR THE REPRESENTATIVES OF EITHER, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY ASSURANCE OF SATISFACTION) ARE HEREBY DISCLAIMED, OVER-RIDDEN AND EXCLUDED. ANY PROMISE, COMMITMENT OR ASSURANCE OF ERROR FREE OR UNINTERRUPTED USE OF THE PLATFORM OR API MATERIALS OR ASSURANCE AGAINST THE LOSS OF DATA IS ALSO HEREBY DISCLAIMED.
7. INDEMNITY AND LIMITATION OF LIABILITY
7.1 Indemnity. Each Party shall indemnify and hold the other Party harmless against third-party claims, liabilities, or costs (including attorney’s fees and expenses) which it may become obligated to pay to the extent a result of (i) a breach of this Agreement, (ii) negligence, (iii) any violation of the law.
7.2 Indemnification procedure. Notwithstanding the indemnity obligations outlined above, the indemnifying Party shall only be required to indemnify the indemnified Party provided that (i) the indemnified Party notifies the indemnifying Party, promptly in writing, not later than fifteen (15) days after the indemnified Party receives written notice of the claim (provided, however, that failure to notify within this timeframe shall not alleviate the indemnitor of its duties hereunder if it has not been materially prejudiced by such delayed notice), (ii) the indemnified Party gives the indemnifying Party sole control of the defense and any settlement negotiations; (iii) the indemnified Party gives the indemnifying Party the reasonable information, authority, and assistance the indemnifying Party needs to defend against or settle the claim, and (iv) the indemnifying Party shall not be responsible for any costs and expenses, including attorneys' fees, incurred by the indemnified Party to monitor the defense or settlement of the claim by the indemnifying Party. Notwithstanding the foregoing, in connection with the defense or settlement of any such claim, the indemnifying Party may not make any admissions on the indemnified Party's behalf, may not agree to any injunctive relief or restrictive covenants affecting the indemnified Party, and may not settle or compromise any claim in a manner that does not unconditionally release the indemnified Party from liability thereunder, without the indemnified Party's prior written consent.
7.3 LIMITATION OF LIABILITY. NEITHER INSURIFY NOR ANY OF ITS THIRD-PARTY SUPPLIERS SHALL BE LIABLE TO DEALER OR TO ANY OTHER PERSON FOR INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR INCREASED EXPENSES OF OPERATION, OR OTHER INDIRECT LOSS OR DAMAGE) OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF INSURIFY, OR ITS THIRD PARTY SUPPLIERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL INSURIFY’S LIABILITY IN THE AGGREGATE EXCEED THE TOTAL FEES PAYABLE BY INSURIFY TO DEALER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
8.1 Confidential Information. In performing its obligations pursuant to this Agreement, each Party may have access to and receive information about the business, transactions, and procedures of the other. All such information and materials (except as hereafter set forth) are confidential and proprietary and shall remain the property of the Party that disclosed the information (the “Confidential Information”). Each Party shall receive the Confidential Information in confidence and shall not disclose, give, sell, or otherwise transfer or make available, directly or indirectly, any of the Confidential Information to any third party, except (1) as may be necessary to perform its obligations pursuant to this Agreement; (2) as may be required by law; or (3) as may be agreed in writing by the other Party. Confidential Information shall not include information which: (i) is or becomes available to the public other than by a breach of this Agreement; or (ii) was previously known to the receiving Party without any obligation to hold it in confidence; or (iii) was received from a third party free to disclose such information without restriction. Confidential Information includes the terms of this Agreement, including the Order Form.
9. ADDITIONAL INTEGRATION.
9.1 CRM Integration. Dealer may enable Dealer’s CRM or other platform to pass certain information directly into Insurify’s Platform. This information may include name, date of birth, home address, email, cell phone and/or landline number, the automobile the customer is purchasing, how the customer intends to purchase (i.e., finance, lease, or cash), and the loan or lease terms. Insurify acknowledges and agrees that such information shall be Data under the Agreement and subject to the terms and conditions applicable of Data.
9.2 CRM Service. Insurify may provide certain customer demographic and vehicle and insurance Data to Dealer and/or Dealer’s CRM or other platform in such a format that the Data will create a new record in Dealer’s CRM or other platform, as directed by Dealer. Dealer will provide Insurify with the appropriate information to facilitate this action. Dealer acknowledges and agrees that such information shall be Data under the Agreement and subject to the terms and conditions applicable of Data.
10. GENERAL TERMS
10.1 Relationship. The relationship of the Parties to this Agreement is that of unrelated independent contractors. Neither Party shall have any claim under this Agreement or otherwise against the other Party as a co- employer, joint venturer or partner.
10.2 Impossibility of Performance. No Party shall be deemed to be in violation of this Agreement if prevented from performing any obligation hereunder due to matters that are beyond its control, including without limitation acts of war or terrorism, strikes, riots, floods, storms, earthquakes, other elements or acts of God or the public enemy, utility or communication failure or delays, labor disputes, strikes, or shortages, equipment failures, software malfunctions, government actions, or epidemics.
10.3 Survival. Any provision of this Agreement that by its nature must survive the termination of this Agreement in order to achieve its full purpose or effect is deemed to survive termination.
10.4 Waiver. No waiver by a Party of any breach of any provision of this Agreement shall constitute a waiver of any other breach of that or any other provision of this Agreement unless such waiver is in writing.
10.5 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Insurify shall not assign this Agreement without Dealer’s prior written consent, unless such assignment is related to a reorganization, merger, acquisition (assets or stock), or similar such transaction. Dealer shall not assign this Agreement without Insurify’s prior written consent.
10.6 Parties to Agreement. This Agreement is solely between Insurify and Dealer and does not create or confer any rights upon any other person or entity, including Dealer’s customers.
10.7 Cooperation. The Parties shall keep each other reasonably informed about legal or any other developments affecting the Agreement, shall cooperate with one another to carry out and implement the terms and objectives of this Agreement, and shall perform such further acts, execute such further documents, and enter into such further agreements as may be necessary or appropriate to these ends.
10.8 Interpretation. This Agreement shall be governed by, and interpreted, construed, and enforced in accordance with the laws of the Commonwealth of Massachusetts, without giving force or effect to the principles of conflicts of laws. The headings herein are provided for convenience only and shall not be construed to infer intent or meaning.
10.9 Disputes. In the event of any dispute between the Parties arising out of or concerning this Agreement, the Parties agree to use their reasonable best efforts to resolve any such dispute amicably, in good faith, and expeditiously prior to resorting to litigation. The courts of the Commonwealth of Massachusetts shall have exclusive jurisdiction over the Parties with respect to any dispute or controversy arising under or in connection with this Agreement and, by execution and delivery of this Agreement, each of the Parties submits to the jurisdiction of those courts.
10.10 Injunctive Relief. The parties acknowledge that in the event of the breach of certain provisions of this Agreement, they may not have an adequate remedy at law and will suffer irreparable damage and injury. Therefore, in addition to any other remedy available, each Party agrees that if it violates any of such provisions, the non-breaching Party shall be entitled to injunctive relief, without bond, from a court of competent jurisdiction.
10.11 Attorney Fees. If any legal action is necessary to enforce this Agreement or collect any sums due hereunder, each Party shall be responsible for its own attorney fees, costs, and expenses.
10.12 Entire Agreement. This Agreement, including the Order Form, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations, representations, and proposals, whether written or oral, relating to the subject matter hereof. Except as specified in the Order Form, this Agreement may not be released, discharged, or modified except by an instrument in writing signed by a duly authorized representative of each of the Parties. By continuing to use the Platform, you agree to any changes that we may make to this Agreement and to the Platform from time to time.
10.13 Counterparts. This Agreement may be executed by original, facsimile, or valid electronic signatures and in any number of counterparts, each of which shall be deemed an original as against any Party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually, or taken together, shall bear the signatures of all the Parties reflected hereon as the signatories.
End of Terms and Conditions