RECITALS

This End User License Agreement (EULA) is a legal binding agreement that sets out the terms governing:

A. your use of the AGENCYMATE product via the website at https:\\[Licensee Sub Domain].virsaic.com, any successor website, and the services available on that website or any successor website (the “Services“); and

B. the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content“).

C. WHEREAS, COTÉ SOFTWARE & SOLUTIONS (“COTÉ” or “us”) agrees to provide Licensee and its customers with access to the Services pursuant to the terms of this Agreement.

D. References in this Policy to “you” are to any customer who has a contractual right to access or use the Services (“Customer”) and any individual user of the Services (such as an employee of such Customer) who has been authorized by the Customer to access the Services (and “your” should be construed accordingly); and references in this Policy to “us” are to COTÉ (and “we” and “our” should be construed accordingly).

E. By using the Services, you agree to the terms set out in this EULA.

F. We will ask for your express agreement to the terms of these EULA before you upload or submit any Content or otherwise use the Services.

G. You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.

H. Access must be granted by an authorized representative of the Customer.

NOW THEREFORE, in recognition of the mutual consideration hereunder, and the above recitals, the parties agree as follows:

Definitions

In this Agreement, the following definitions apply unless expressly stated otherwise.

“Affiliate” means any entity that directly or indirectly: majority owns or controls, is majority owned or controlled by, or is under common majority ownership or control with, a party to this Agreement or any company that is a successor (whether by change of name, merger, consolidation, reorganization, stock or asset purchase) to any such party or its business and assets.

“Agent” means any employee, officer, director, partner, consultant, representative, third-party service provider, contractor or other person designated by a party to act or perform on its behalf (including, without limitation, a subcontractor or delegate, pursuant to the Subcontracting & Delegation section herein).

“Applicable Standards” means laws, regulations, and government directives and all industry standards with respect to the access and use of Protected Information.

“eSignature” means an electronic signature, or e-signature, refers to data in electronic form, which is logically associated with other data in electronic form and which is used by the signatory to sign.

“Licensee” means you or any person, user and/or entity to whom you grant a license to access and/ or use the Services provided by COTÉ.

“Location” means the provision of services for licensees with businesses operating in and governed by the laws of the United States of America.

“Personally Identifiable Information” or “Protected Information” means any information collected from or about any individual person(s) that the parties, their employees, or anyone acting on its behalf accesses pursuant to the Agreement including any personally identifiable information collected from or about any individual including, names, contact information (including, without limitation, e-mail addresses, postal addresses and telephone numbers), government identification numbers, financial account numbers, payment card information, transaction information, credit report information, biometric information, IP addresses, network and hardware identifiers, geolocation information, and any other information about individuals or their use of the Services (including products and services provided by COTÉ  on Licensee’s behalf).

‘Prefill” means Form Prefill or Pre-populating form fields with data from another form in advance of an online submission.

“Query” means a request for data generated by Licensee submitted to COTÉ.

“Query Response” means information received by Licensee from COTÉ in response to a Query.

“Services” means an integrated Agency Management Platform that facilitates but is not limited to, lead management, carrier quotes, administration, policy confirmation, communication, acceptance, archive and retrieval services for insurance agents, their applicants and the carriers utilising 3^rd Party service providers where necessary for the administration and management of insurance applicants, clients and policies.

“Third Party Providers” means anyone acting on behalf of either party to assist in the performance of this Agreement. Third Party Providers include but is not limited to Licensee’s appointed or un-appointed carriers, Managing General Agencies, and other providers of rates, quotes, forms, digital signatures, email, SMS, and data used by and within the Services. Some of the information supplied to Licensee in connection with the delivery of the Services may constitute data or information owned by persons or entities other than COTÉ. Licensee acknowledges that the Third-Party Providers own all rights, title and interest in and to their respective databases including, but not limited to, all literary property rights, copyrights, trademarks, trade secrets, trade names, service marks, and logos. Licensee shall use commercially reasonable efforts to prevent and protect the contents of the databases from unauthorized disclosure, copying or use. Licensee’s obligations concerning misuse and confidentiality of the Third-Party Provider’s databases and rights of action against Licensee for any breach thereof shall survive the termination of this agreement.

“User” means a user of the Services using a unique IP address or a user that is tied to an individual account or credentials of Licensee or Licensee’s Affiliates

Terms

WHEREAS, COTÉ agrees to provide Licensee and its customers with access to the Services pursuant to the terms of this Agreement;

1. General usage rules

1.1. You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

1.2. You must not use the Services:

(i) in any way that is unlawful, illegal, fraudulent or harmful; or
(ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

1.3. You must ensure that all Content complies with the provisions of these EULA.

2. Unlawful Content

2.1. It is Licensee’s sole responsibility to ensure that Content is not illegal or unlawful, does not infringe any person’s legal rights, and is not capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

2.2. Licensee must ensure that the Content, and the use of Content by us in any manner necessary to make the Services available to you, will not:

(iii) be libelous or maliciously false;
(iv) be obscene or indecent;
(v) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property rights;
(vi) infringe any right of confidence, right of privacy or right under data protection legislation;
(vii) constitute negligent advice or contain any negligent statement;
(viii) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(ix) be in contempt of any court, or in breach of any court order;
(x) constitute a breach of racial or religious hatred or discrimination legislation;
(xi) be blasphemous;
(xii) constitute a breach of official secrets legislation; or
(xiii) constitute a breach of any contractual obligation owed to any person.

2.3. You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint or dispute.

3. Graphic material

3.1. You must ensure that all Content is appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.

3.2. You must ensure that Content does not depict violence in an explicit, graphic, or gratuitous manner.

3.3. You must ensure that Content is not pornographic or sexually explicit.

4. Factual accuracy

4.1. It is your responsibility to ensure that Content is not untrue, false, inaccurate or misleading.

4.2. You must ensure that statements of fact contained in Content and relating to persons (legal or natural) are true; and statements of opinion contained in Content and relating to persons (legal or natural) are reasonable, honestly held and indicate the basis of the opinion.

5. Negligent advice

5.1. You must ensure that Content does not consist of or contain any legal, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, investment, taxation, accountancy, medical or other professional advisory services.

5.2. You must ensure that Content does not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

6. Etiquette

6.1. You must ensure that Content:

(i) is appropriate, civil and tasteful, and accords with generally accepted standards of etiquette and behavior on the internet;
(ii) is not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory; and
(iii) is not likely to cause annoyance, inconvenience or needless anxiety to any person.

6.2. You must not use the Services:

(i) to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people;
(ii) for the purpose of deliberately upsetting or offending others; or
(iii) In any manner that floods the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.

6.3. You must ensure that Content does not duplicate other content available through the Services.

6.4. You must ensure that Content is appropriately categorized.

6.5. You should use appropriate and informative titles for all Content.

6.6. You must at all times be courteous and polite to other users of the Services.

7. Marketing and spam

7.1. It is your responsibility to ensure Content does not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

7.2 You must not send any spam or other marketing communications to any person using any email address without their prior consent.

7.3 You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, “get rich quick” schemes or similar letters, schemes or programs.

8. Market Disclosure

8.1 Licensee grants permission to COTÉ to publicly disclose to the market that Licensee is a customer of COTÉ and a user of the AGENYMATE platform within 3 months from successful registration and completion of AGENCYMATE setup/configuration. COTÉ may seek to co-develop a case study to be shared and published online with 12 months of platform usage, dependent on approval of any copy by Licensee.

9. Gambling

9.1. You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

10. Monitoring

10.1. You acknowledge that we may actively monitor the Content and the use of the Services.

11. Hyperlinks

11.1. You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

12. Harmful software

12.1. You must ensure the Content:

(i) does not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies; and
(ii) does not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

13. License Grant

13.1. COTÉ hereby grants to Licensee and its Affiliates a limited, revocable, non-transferable, non-exclusive, non-sublicensable license, to access and use the Services. Nothing in the Agreement will prohibit COTÉ from providing the Services to, or performing similar services for, any third party.

14. Restrictions

14.1. Except as otherwise set forth herein, Licensee will not and will not knowingly permit Affiliates and Users to:

(i) modify, copy, distribute, or make derivative works based on any part of the Services;
(ii) except to the extent applicable law permits notwithstanding this limitation, reverse engineer, disassemble, decompile or otherwise attempt to access the source code of the Services;
(iii) remove, efface, or obscure any copyright or other proprietary notices or legends included in the Services;
(iv) interfere in any manner with the operation of the Services;
(v) transfer, assign, or license rights to the Services other than as permitted under this Agreement;
(vi) create any derivative work from, or adaption of the Services; or
(vii) otherwise use the Services in any manner that is not expressly authorized in or exceeds the scope of this Agreement. Licensee will use the Services in compliance with the documentation and instructions provided by COTÉ to the extent they do not conflict with the terms of this Agreement.

15. Ownership

15.1. As between the parties, COTÉ retains all right, title, and interest in and to the Services, and all intellectual property rights embodied therein, and except as expressly provided herein, nothing in this Agreement transfers or licenses any rights in or ownership of the Services, or any intellectual property rights of COTÉ. As between the parties, Licensee retains all right, title, and interest in and to the Query information, and all intellectual property rights embodied therein, and except as expressly provided herein, nothing in this Agreement transfers or licenses any rights in or ownership of the Query information, or any intellectual property rights of Licensee.

16. Obligations

16.1. Service Level: Licensee or Agent of Licensee understands that (i) for Services that require Internet access, COTÉ will maintain 99.8% per month (the “Uptime Target”) availability and functionality for the Services provided to the Licensee, subject to reasonable periods of maintenance. COTÉ will use reasonable efforts to perform such maintenance for the Services between Sunday at 12:00 am Central Standard Time and Sunday at 6:00am Central Standard Time (“Scheduled Maintenance”). Licensee expressly acknowledges that to the extent the following matters are beyond the reasonable control of COTÉ they may cause the Services to be unavailable, delayed, limited or slow (and, as such, none of which will apply to the downtime calculation):

(i) Scheduled Maintenance
(ii) A failure of the Internet including but not limited to data center connectivity, domain name system, third party registrars, backbone connectivity and/or public switched telephone networks;
(iii) Hardware failure, including among other things failures of computers (including Licensee’s own computers), servers, networks, telecommunication lines and connections, and other electronic and mechanical equipment or software failure, including among other things, bugs, errors, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or irregularities within particular documents, rates, or other content provided by Third Party Providers and systems outside of COTÉ’s control.
(iv) Overload of system capacities due to denial of service style attacks;
(v) Damage caused by severe weather, earthquakes, wars, insurrection, riots, civil commotion, act of God, accident, fire, water damage, explosion, mechanical breakdown or natural disasters
(vi) Extended interruption (whether partial or total) of power supplies or other utility of service
(vii) Strike or other stoppage (whether partial or total) of labor;
(viii) Governmental or regulatory restrictions, exchange rulings, court or tribunal orders; or
(ix) Any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond the reasonable control of COTÉ (including for e.g. a disruption caused by a pandemic or resulting action caused by a government, businesses or others), and (ii) as the sole recourse available to the Licensee for breach of the foregoing assurance, upon request COTÉ will credit Licensee a credit towards the Services upon a prorated basis by calculating the difference in Fees actually paid by Licensee between the actual monthly uptime and the Uptime Target.

16.2. Licensee or Agent of Licensee:

(i) will provide reasonable non-monetary assistance to COTÉ in obtaining new carriers, markets, or products requested by Licensee
(ii) will not knowingly engage in any activities related to the Services that is prohibited by applicable law, regulation or the terms of any agreements it may have with COTÉ or knowingly facilitate the violation of any law or regulation
(iii) will not attempt to utilize another user’s account or persona without proper authorization. Licensee further agrees not to use the Services to violate the privacy or security of COTÉ or any third party
(iv) may use the Services in its internal business operations only and shall comply with all US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations, relating to the Services or Content. The Services may be used only in the LOCATION where they are licensed, and
(v) use the Services in its internal business operations only.

16.3. COTÉ:

COTÉ will not be responsible for verifying the accuracy of Protected Information or any other data or information incorporated into the software by the licensee or its agents or affiliates.

17. Representations and Warranties

17.1. By Both Parties: Each party represents and warrants that, (i) it is duly formed and validly existing under the laws of its state of formation and has all rights and the corporate capacity to enter into this Agreement and to perform each of its obligations hereunder, and (ii) it will comply with all applicable laws, statutes, ordinances, codes, rules and regulations of any governmental body.

17.2. By COTÉ: COTÉ represents and warrants that, (i) it has and will retain the legal right through ownership or other legal arrangements to offer the Services, (ii) it has and will retain all necessary rights to grant the licenses in this Agreement and provide the Services to Licensee, (iii) it has used and will continue to use reasonable care and skill in developing and collecting the Services, (iv) the Services will materially conform to the specifications set forth in this Agreement, and (v) the Services (1) is of no less quality and coverage than equivalent content that COTÉ licenses to other parties or makes available through its own websites, products, or services, and (2) does not contain any viruses or other malicious code, or other defects that could damage or disrupt Licensee’s or User’s systems, (vi) it has used and will continue to use reasonable care and skill in developing the Services, (vii) it will use commercially reasonable efforts, consistent with industry practices, in its collection, storage, use, and disclosure of Personally Identifiable Information, and (viii) the design, development, manufacture, production, sale and use by COTÉ of the Services will not infringe, misappropriate or otherwise make any unlawful or unauthorized use of any rights of a third party.

17.3. By Licensee: Licensee represents and warrants that, (i) it has used and will continue to use reasonable care and skill using the Services and (ii) it will use commercially reasonable efforts, consistent with industry practices, and, where applicable, in compliance with all applicable legal requirements, in the collection, storage, use, and disclosure of Personally Identifiable Information.

18. Disclaimers

18.1. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS-IS.” EXCEPT AS OTHERWISE SET FORTH HEREIN, NEITHER COTÉ NOR LICENSEE MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AND EACH PARTY EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

18.3. BY OFFERING SERVICES OVER THE INTERNET, NO SOLICITATION IS MADE BY COTÉ TO ANY PERSON IN JURISDICTIONS WHERE THE PROVISION OF SUCH PRODUCTS OR SERVICES ARE PROHIBITED BY LAW.

18.4. COTÉ WILL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY FAULT, FAILURE, LOSS OR DAMAGE THAT IS CAUSED OR CONTRIBUTED TO DIRECTLY OR INDIRECTLY BY ACORD CORPORATION OR ACORD CORPORATION’S PRODUCT, SERVICES, SOFTWARE, INFORMATION OR INTELLECTUAL PROPERTY.

19. Information Usage and Protection

19.1. Confidential Disclosures; Security: Subject to the other provisions of this agreement, COTÉ shall not disclose or use any Protected Information provided by Licensee to COTÉ. Protected Information shall not be reproduced or shared with any other party except those entities with which COTÉ may from time-to-time contract in accordance with the fulfillment of the Services and which disclosure shall comply with all state and federal statutes and regulations governing the disclosure of non-public Personally Identifiable Information.

19.2. Use of Statistical Information: COTÉ shall be expressly permitted to collect and aggregate information provided by Licensee in connection with Licensee’s use of the Services, including Query and Query Response data, but such aggregated information will not be associated with any individual in a personally identifiable manner (“Statistical Information”). Such information may be used by COTÉ, and/or shared by COTÉ with third parties, for aggregated analysis, marketing and statistical purposes. Licensee hereby consents to such use and/or sharing of such statistical information, provided that the information is not associated with any individual or Licensee in a personally identifiable manner, and provided that COTÉ uses commercially reasonable efforts to ensure that any related Protected Information cannot be reverse engineered or otherwise identified from analysis or further processing of such derived data.

19.3. Use of Statistical Information: COTÉ shall be expressly permitted to share all data associated with an individual Agency to third party financial institutions (Banks, Money Lenders and similar) at the written request of the Licensee, to support merger and acquisition activities.

19.4. Use of Statistical Information: COTÉ shall be expressly permitted to provide comparisons of Individual Licensee/Agency data with all aggregated information associated with associated Licensee for market comparison and business performance support.

19.5. Disclosure to Acord: Licensee acknowledges and agrees that: (a) COTÉ is obliged to report to ACORD Corporation certain information provided by or otherwise relating to Licensee and its use of the Services; and (b) the provision of such information by COTÉ to ACORD Corporation shall not be a breach of this agreement by COTÉ.

19.6. Use of Personal or Confidential Information by Licensee and COTÉ: Licensee acknowledges that Personally Identifiable Information can identify Licensee or its customers is collected by COTÉ when entered by Licensee. Licensee represents and warrants to COTÉ (as an important inducement for COTÉ to enter into this agreement and permit access to the Services) that its entry of any such information or any customer or consumer non-public personal information into the Services is for the purposes of processing a financial transaction expressly requested or authorized by such customer or consumer and that Licensee has obtained from each such customer or consumer all consents and approvals as may be required for the use, entry and disclosure of such personal information by Licensee and COTÉ for the purpose of processing transactions under this Agreement. Licensee and COTÉ each agrees to maintain and shall cause its officers, directors, employees, and permitted agents and subcontractors, if any, to maintain the confidentiality and security of such personal information obtained through the use of the Services and to prevent the disclosure of such information to third parties except as may be required or permitted by applicable law. Licensee and COTÉ may transmit, monitor, retrieve, store and use such personal information and data only as described herein and as permitted by applicable law. LICENSEE SHALL INDEMNIFY AND HOLD HARMLESS COTÉ AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS AND EMPLOYEES FROM ANY AND ALL CLAIMS, ACTIONS, SUITS OR PROCEEDINGS, AS WELL AS ANY AND ALL LOSSES, LIABILITIES, DAMAGES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF ANY BREACH BY LICENSEE OF ITS REPRESENTATIONS, WARRANTIES, OR OBLIGATIONS UNDER THIS SECTION. COTÉ SHALL INDEMNIFY AND HOLD HARMLESS LICENSEE AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS AND EMPLOYEES FROM ANY AND ALL CLAIMS, ACTIONS, SUITS OR PROCEEDINGS, AS WELL AS ANY AND ALL LOSSES, LIABILITIES, DAMAGES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF ANY BREACH BY COTÉ OF ITS REPRESENTATIONS, WARRANTIES, OR OBLIGATIONS UNDER THIS SECTION.

19.7. Information Protection Program: (i) COTÉ will establish, implement, and maintain a reasonable program (a “Information Protection Program”) of organizational, operational, administrative, physical, and technical safeguards appropriate to (1) prevent any access to Protected Information in a manner not authorized by the Agreement, and (2) comply with and meet all Applicable Standards. (ii) Licensee and Licensee’s Agents will establish, implement, and maintain a reasonable program of organizational, operational, administrative, physical, and technical Safeguards appropriate to (1) prevent any access to Protected Information in a manner not authorized by the Agreement, and (2) comply with and meet all Applicable Standards and (iii) the Parties shall exercise the necessary and appropriate supervision over their relevant officers, directors, employees, and permitted agents and subcontractors to maintain appropriate privacy, confidentiality and security of Protected Information, as applicable. Prior to providing access to Protected Information, as applicable, to Third Party Providers, each Party shall require Third Party Providers to comply with its Information Protection Program, and provide training, as appropriate, regarding the privacy, confidentiality and information security requirements applicable to Protected Information, as applicable.

19.8. Privacy Policy: All information we collect through or in connection with the Services is subject to our Privacy Policy [https://cote.com.au/privacy-policy/]. By using the Services, Licensee consents to all actions taken by COTÉ with respect to the Privacy Policy.

19.9. Information Security Incident and Notification: Within seventy-two (72) hours, each Party shall inform the other Party in writing, whenever the Party reasonably believes that there has been any unauthorized access or disclosure, unauthorized, unlawful or accidental loss, misuse, destruction, acquisition of, or damage to Company Information, or any other unauthorized processing of Protected Information (“Information Security Incident”). Each Party shall inform the other Party with as many details as known at that time (and regularly update the other Party thereafter in writing or by email setting out in reasonable detail, without limitation, the nature of the information compromised, threatened, or potentially compromised, the specific information compromised or potentially compromised and of all events which may adversely affect the Party’s ability to provide or receive the Services. After providing notice, the informing Party will investigate the Information Security Incident and take all necessary steps to eliminate or contain the exposure of Protected Information, as applicable, and to restore the security of compromised systems, files and information. The informing Party shall keep the other Party informed of the status of the Information Security Incident, all assessments and plans of actions taken by it in response to the Information Security Incident, and all other related matters. The Parties, as applicable, may participate in any investigation, and shall promptly be provided by the informing Party with a full incident report prepared by or for the informing Party relating to an Information Security Incident. The informing Party further agrees to provide reasonable assistance and cooperation requested by the other Party and/or its designated representatives, in the furtherance of any correction, remediation, or investigation of any Information Security Incident and/or the mitigation of any damage, including any notification that the other Party may determine appropriate to send to affected individuals, regulators or third parties, and/or the provision of any credit reporting service that the other Party deems appropriate to provide to affected individuals. In addition, within 30 days of identifying or being informed of any Information Security Incident arising from any act or omission by the informing Party, the informing Party will develop and execute a plan, that reduces the likelihood of a recurrence of an Information Security Incident.

19.10. Return or Destruction: Upon completing the performance of services or functions for which the Licensee’s Protected Information is provided, upon request by Licensee, COTÉ will return to Licensee or destroy, at Licensee’s option, all such Protected Information in COTÉ ‘s possession or control, except as set forth in this section.

19.11. Retention of Statistical Information: Statistical Information aggregated using Protected Information may be kept indefinitely.

19.12. Archival Copies: COTÉ will use its best efforts to secure any backup copies of Protected Information automatically created by the Services, systems, devices or media (“Archival Copies”). Except as set forth herein that is i) COTÉ will securely destroy all Archival Copies of Protected Information, following an industry standard procedure for complete destruction such as NIST Special Publication 800-88, and (ii) to the extent it is reasonably necessary to preserve Archival Copies to ensure the availability of the Services, systems, devices or media, COTÉ will (1) render all Protected Information on the Archival Copies permanently inaccessible, such as by destroying all copies of all encryption keys required to decrypt Protected Information and (2) securely destroy such Archival Copies promptly when the Archival Copies are no longer reasonably necessary.
19.13. Legal Retention Obligations: COTÉ is required by applicable law and contract to retain Protected Information following expiration or termination of the Agreement, COTÉ will: (i) retain only the Protected Information and the copies COTÉ is required by law or contract to retain, (ii) not permit anyone to access Protected Information retained except as required by law, including those personnel who need to access Protected Information in compliance with law, and; (iii) securely destroy all copies of Protected Information as soon as COTÉ is not required by law to retain them. Prior to such destruction, COTÉ will maintain all applicable Safeguards to protect the security, privacy and confidentiality of the retained information.

19.14. Audit Requirements: COTÉ may retain archival copies of Protected Information for the limited purpose of allowing audit of COTÉ ‘s usage of data licensed to COTÉ, if COTÉ will: (i) retain only the Protected Information and the copies COTÉ is required to retain to comply with such audit obligations, (ii) not permit anyone to access Protected Information retained pursuant to this section except as required to comply with such audit obligations, and (iii) securely destroy all copies of Protected Information as soon as COTÉ is not required by governmental authorities to retain them. Prior to such destruction, COTÉ will maintain all applicable Safeguards to protect the security, privacy and confidentiality of the retained information.

19.15. Driver and Motor Vehicle Records; Third Party Sources: The Services may provide access to Protected Information from Third Party Providers including but not limited to credit reports, motor vehicle and driver records, claims history (“Protected Third Party Data”). Licensee understands that (i) in accordance with the Driver’s Privacy Protection Act (DPPA), the Fair Credit Reporting Act, and other state and federal regulations (“Consumer Protection Laws”), Protected Third Party Data may only be accessed and used by Licensee, Licensee’s carriers or managing general agencies, and its Agents in connection with the rating or underwriting provided by the Services, (ii) COTÉ does not guarantee the accuracy or timeliness of the Protected Third Party Data provided, and (iii) COTÉ . LICENSEE IS SOLELY RESPONSIBLE FOR ENSURING THAT ANY LICENSEE USE OF PROTECTED THIRD PARTY DATA COMPLIES WITH APPLICABLE LAW, AND AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS COTÉ FOR ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES (“CLAIMS”) RELATED TO OR ARISING OUT OF (I) LICENSEE USE OR MISUSE OF PROTECTED THIRD PARTY DATA OR (II) VIOLATIONS OF CONSUMER PROTECTION LAWS.

20. Limitations of Liability

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE, (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT SERVICES; (e) LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EACH PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF THE TOTAL FEES ACTUALLY PAID TO COTÉ IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM

21. Indemnification and acknowledgment

21.1. Indemnification by Licensee: Licensee will indemnify, defend and hold harmless COTÉ and its directors, officers, employees, and agents (“Representatives”) from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), that are asserted against, incurred, or suffered by any of them, arising out of or in connection with (i) a breach of Licensee’s or Agent’s representations and warranties or obligations under this Agreement, or (ii) Licensee’s willful misconduct, gross negligence or negligent acts, errors or omissions (iii) as described in Section 18.15 of this EULA.

21.2. Indemnification by COTÉ: COTÉ will indemnify, defend and hold harmless Licensee, its Representatives, Affiliates, managers, and Users from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), that are asserted against, incurred, or suffered by any of them arising out of or in connection with (i) a claim, demand or action alleging that the use of the Services in compliance with this Agreement infringes a third party’s intellectual property rights.
20.3. Exclusions: The foregoing indemnification obligations will not apply to the extent the underlying allegation arises from the indemnified party’s breach of this Agreement.

21.4. Conditions: A party must promptly notify the other party in writing of any third-party claim or suit described in this section. The failure to give prompt written notice will not, however, relieve the indemnifying party of its indemnification obligations, except and only to the extent that the indemnifying party forfeits rights or defences by reason of the failure. The indemnifying party will have sole control of the defence and settlement of such claim or suit. The indemnifying party will not enter into settlement of any such third-party claim without the prior written consent of the indemnified party (which consent will not be unreasonably conditioned, withheld or delayed) if the settlement includes any admission on the part of the indemnified party of wrongdoing, does not include an unconditional release of the indemnified party from liability, or contains any sanctions against the indemnified party other than the payment of money for which payment the indemnifying party will pay. The indemnified party will have the right, at its own cost and expense, to participate in the defence of any third-party claim with counsel selected by it subject to the indemnifying party’s right to control the defence thereof. The parties will cooperate with each other in all reasonable respects in connection with the defence of any third-party claim, including making available records and personnel relating to the third-party claim.

21.5. Acknowledgment by Licensee:
Licensee acknowledges that its use of the Services is subject to the following provisions shown in italic font below (and which are specified by Acord Corporation, and for the purpose of this agreement a reference to: (a) “PRODUCT” includes a reference to the Services; and (b) “YOU” means Licensee):

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.

21.6. Fees: In consideration for the performance of the Services, Licensee shall pay to COTÉ the fees set forth by then in effect pricing plus taxes and other amounts described in the Schedule to this Agreement including the below terms:

i) COTÉ will be using a third-party vendor, STRIPE, as their payment processing software which may provide STRIPE access to Protected Information of the Licensee.
ii) The fee will be processed monthly in advance on the anniversary of the Agency’s registration and commencement of utilization of the “Services”.

COTÉ does not control STRIPE and STRIPE services may be subject to additional legal terms and conditions. Please visit the STRIPE website at www.stripe.com for additional information, as Licensee’s is solely responsibility for compliance with all STRIPE legal terms and conditions.

21.7. Failed Payment Fee: A fee of $25.00 will be charged when Licensee’s nominated credit card fails to process the payment for the amount invoiced and presented by COTÉ to STRIPE for “Services”. STRIPE will provide codes as a reason for the decline which will be passed on to the Licensee by COTÉ but most are categorized by the card issuer as “generic”, and for privacy and security reasons, card issuers can only discuss the specifics of a declined payment with the Licensee.

21.8. Modifications of Users: A Licensee may add or delete Users at any time during a month and the subscription fee charged will remain unchanged with no credits or adjustments made accordingly. Total subscription fees for the following month will be based on the highest number of Active Users for the prior month. .

21.9. Prefill and eSignature Fees: A licensee is allocated a non-Chargeable quantity of Prefills and eSignatures per month aggregated based on the number of Active Users as outlined in the schedule. Where the Licensee’s monthly usage of Prefills and eSignatures exceeds their monthly aggregated allocation, there will be an adjustment charged on the following months invoice for the previous months usage at the fees outlined in the schedule.

21.10. Fee Variation: Fees charged will remain firm for the period agreed to in the schedule. Any variation to fees must be communicated to the Licensee by COTÉ 30 days prior to the term expiration or renewal.

21.11. Invoice: COTÉ shall present Licensee with an invoice in electronic format for any Fees for Services. Any amount due to COTÉ under an invoice shall be due and payable in advance on the anniversary of the Agency’s registration and commencement of utilization of the “Services”. or otherwise, as per COTÉ ‘s invoice. All invoices and all payments hereunder shall be in U.S. dollars.

21.12. Non-Refundable: Any Fees made by Licensee in accordance with this Agreement shall, once they are paid, not be refundable nor creditable for any reason whatsoever, unless otherwise expressly agreed upon by the Parties.

21.13. Term: This Agreement will commence upon the acceptance of this Agreement and continue for the “Initial Term” agreed to in the schedule. Unless a party terminates this Agreement, the Agreement will automatically renew (“Automatic Renewal”) for successive terms agreed in the revised schedule (each a “Renewal Term”, the Initial Term and all Renewal Terms, collectively, the “Term”).

21.14. Termination: This Agreement may be terminated by any party by giving prior written thirty-day notice to the other party.

21.15. Effects of Termination: Upon termination of this Agreement for any reason, Licensee will discontinue all use of the Services. All Fees owed to COTÉ will become immediately due and payable upon termination or expiration of this Agreement.

21.16. Termination Fee: A termination fee will be calculated and charged based on the number of registered Users and the Subscription Fee outlined in the Schedule at the time of Termination multiplied by the Number of Months remaining in the Term of the Agreement.

21.17. Data Migration:

i) A One-off Fee will be calculated and charged based on the number of registered Users for one month’s Subscription Fee for Data Migrated ONTO AGENCYMATE.
ii) A One-off Fee will be charged and advised to the Licensee for Data to be Migrated OFF AGENCYMATE as required..

22. Subcontracting & Delegation

Licensee shall not subcontract or otherwise delegate any of its duties or obligations hereunder related to the Services, in whole or in part, without COTÉ ‘s prior written approval, which shall not be unreasonably withheld, delayed or conditioned. Notwithstanding COTÉ ‘s consent to any subcontracting or delegating of Provider’s obligations hereunder, Licensee shall (a) remain liable to COTÉ for the performance of its Affiliates and Agents, (b) require such Affiliates and Agents who are third party providers to agree in writing to be bound to uphold Licensee’s obligations of this Agreement, (c) require Affiliates and Agents to work under the control and direction of Licensee, (d) shall be solely responsible for the negligent acts and/or omissions of its Affiliates and Agents, and (e) require Agents who are third party providers integrating the Services on behalf of Licensee be bound by a separate Third Party Technology Provider Agreement.

22.1. General; Miscellaneous Modification of the End User License Agreement: COTÉ has the right to modify this End User License Agreement. Any modification is effective immediately upon either a posting within the Services, or upon notice by electronic mail, or U.S. mail. Your continued use of the Services following notice of any modification to this End User License Agreement shall be conclusively deemed an acceptance of all such modification(s). Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of COTÉ in providing its Services, including, without limitation, (i) any change in the Services, or (ii) any change in the amount or type of service Fees, is to terminate your account by delivering notice to COTÉ in accordance with Section 10 of this Agreement.

22.2. Modification of Services: Licensee hereby expressly acknowledges that COTÉ may discontinue or make changes to the Services at any time without prior notice to the Licensee and without any liability to Licensee. Any dated information delivered to Licensee as part of the Services is published as of the date and time of its delivery only and COTÉ does not undertake any obligation or responsibility to update or amend any such information. COTÉ specifically reserves the right to terminate the Services and Licensee’s use of the Services without prior notice to Licensee.

22.3. Publicity: A party may not issue a press release or public announcement using or referring to the other party or work performed under this Agreement, or list the other party as a partner on its website or in general marketing materials without the other party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed.

22.4. Force Majeure: Neither party shall be liable to the other for any delay or failure to perform under this Agreement if the delay or failure to perform is without the fault or negligence of the party claiming excusable delay and is due to causes beyond the reasonable control of said party, including, but not limited to: acts of God; war; acts of the government; fires; floods; epidemics; quarantine restrictions; strikes, labor disputes or work stoppages; and freight embargoes.

22.5. Notices: Any and all notices permitted or required to be made under this Agreement will be in writing, signed by the person giving such notice, and will be e-mailed, hand delivered, sent through the U.S. post office by registered or certified mail, postage prepaid, or sent using a nationally recognized overnight delivery service (such as Federal Express) and addressed to Licensee at Licensee’s billing address or to COTÉ’s address. Any notice sent as set forth above will be deemed to have been given on the day of delivery if emailed or hand-delivered personally, four days after mailing if mailed or sent by U.S. post office registered or certified mail, or on the next business day after depositing with a nationally recognized overnight delivery service.

22.6. Links to Other Sites: Links to non-COTÉ Websites may be provided solely as pointers to information on topics of potential interest and COTÉ has no control over the content on such non-COTÉ Websites. If you elect to link to a Website not controlled by COTÉ, COTÉ makes no warranties, either express or implied, concerning the content of such site, including the accuracy, completeness, reliability or suitability thereof for any particular purpose, nor does COTÉ warrant that such site or content is free from any claims of copyright, trademark or other infringement of the rights of third parties or that such site or content is devoid of viruses or other contamination. COTÉ does not guarantee the authenticity of documents on the Internet. Links to non-COTÉ sites do not imply any endorsement of or responsibility for the opinions, ideas, products, information or services offered at such sites, or any representation regarding the content at such sites.

22.7. Copyrights; Intellectual Property Rights: The works of authorship contained in the Services, including, but not limited to, all design, text, sound recordings and images, are owned by COTÉ. Except as expressly authorized herein, such works of authorship may not be copied, transmitted, displayed, performed, distributed (for compensation or otherwise), licensed, altered, framed, stored for subsequent use or otherwise used in whole or in part in any manner without COTÉ ‘s prior written consent. In the event that COTÉ expands, modifies, integrates or otherwise creates additional intellectual property at the request or suggestion of Licensee or in order to facilitate the use by Licensee of the Services hereunder (whether or not the conceptualization, idea or implementation was created, in whole or in part with Licensee), Licensee agrees that such intellectual property shall be owned exclusively by COTÉ.

22.8. Replacement or Modification of Agreement: COTÉ has the right to modify or replace this Agreement at any time. Any modifications are effective immediately upon either notification within the Services, by electronic mail. Licensee’s continued use of the Services following notice of any modification to this Agreement shall be conclusively deemed as acceptance of all such modifications. Licensee’s only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of COTÉ in providing its Services, including, without limitation any change in the Services or Fees, is to terminate as provided in Section 21.14 of this Agreement.

22.9. No Waiver: The failure of any party to insist on strict performance of a covenant hereunder or of any obligation hereunder will not be a waiver of such party’s right to demand strict compliance therewith in the future, nor will the same be construed as a novation of this Agreement, unless such party agrees in writing to any such waiver or novation.

22.10. Independent Contractors: The parties are each independent contractors and not joint venturers, partners, agents, or representatives of the other. Neither party has any right to create any obligation on the part of the other party.

22.11. Severability: If any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect, and the parties will substitute a valid provision with the same intent and economic effect.

22.12. Authority: Each party represents to the other that it has full authority to enter into and secure performance of this Agreement, and that the person signing this Agreement on behalf of the party has been properly authorized to enter into this Agreement or is a licensed User of Licensee. Each party further acknowledges that it has read this Agreement, understands it, and agrees to be bound by all of its terms, conditions, and provisions.

22.13. Applicable Law; Venue and Jurisdiction: This Agreement is governed by Delaware law, excluding its conflicts of law rules. Licensee irrevocably submits to venue and exclusive personal jurisdiction in the federal and state courts in Delaware, for any dispute arising out of this Agreement, and waives all objections to jurisdiction and venue of such courts.

22.14. Agreement: This Agreement shall be subject to and superseded by other agreements the Licensee has entered into with COTÉ pertaining to the Services

22.15. Assignment: Each party may assign this Agreement or any rights granted hereunder in its entirety upon prior written notice to the other party; provided that the successor-in-interest to such party agrees in writing to be bound by the terms and conditions of this Agreement. Subject to the above restrictions on assignment, this Agreement will inure to the benefit of and bind the successors and assigns of the parties.

22.16. Counterparts: This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will constitute one and the same instrument.

22.17. ISO Notice: The Services may include data sources provided by the Insurance Services Office, Inc. (“ISO”). Licensee’s carriers or managing general agencies may use ISO’s proprietary vehicle symbols for rating and underwriting (“ISO Participating Insurers”). Licensee understands that (i) the Services include copyrighted material of ISO used with its permission, (ii) the Services include information which is proprietary to ISO, (iii) use of ISO proprietary information is limited to ISO Participating Insurers. ISO Participating Insurers’ use is limited to those jurisdictions and for those lines of insurance, jurisdictions and services for which such insurer is licensed by ISO, (iv) ISO does not guarantee the accuracy or timeliness of the ISO information provided, and (v) ISO shall not be liable for any loss or damage of any kind and howsoever caused resulting from Licensee’s use of the ISO information.