This Insurance Website Builder Subscriber Agreement ("Agreement") is made as of the Effective Date, by and between Insurance Technologies Corp., with offices located at 1415 Halsey Way, Suite 314, Carrollton, Texas 75007 (“ITC”) and the party identified as Subscriber on the Subscriber Application (“Subscriber”).
WHEREAS, ITC developed and owns that certain software entitled Insurance Website Builder (“Software” as defined hereinafter), which provides tools for customers to create and maintain web sites on the Internet through the Software web page (“Services” as defined hereinafter); and WHEREAS, Subscriber desires electronic assistance and tools to create and maintain an Internet web site; and WHEREAS, Subscriber is familiar with the Software and has determined that the Software will satisfy the requirements of Subscriber; and WHEREAS, Subscriber desires to access the Software and use the Services in accordance with the terms and provisions of this Agreement. NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Subscriber and ITC hereby agree as follows:
Section 1.01 – Recitals: The above recitals and identification of parties are true and correct. Section 1.02 – Definitions: The following definitions shall apply:
(1) employees of Subscriber authorized by Subscriber to access the Software or the Services for purposes of using the Services; accessing, retrieving, and viewing Data; inputting, retrieving, modifying, or deleting Subscriber Content; and creating Subscriber Technology, and (2) Authorized Persons who are authorized in writing by ITC to access the Software and the Services.
Section 2.01 – Access: ITC hereby grants Subscriber a non-exclusive and non-transferable license to access the Software, Services, Deliverable, and Documentation during the Term, subject to the terms and provisions of this Agreement.
Section 2.02 – Deliverable: On the Effective Date, Subscriber hereby acknowledges and agrees that access to the Software requires use of the Deliverable and Subscriber shall be solely responsible for implementing, configuring, and maintaining the Deliverable. Upon request by Subscriber and approval by ITC in writing, ITC shall perform Consulting Services to assist Subscriber to implement the Deliverable.
Section 2.03 – Subscriber Content: During the Term, Subscriber may input Subscriber Content into the Software using the Services; retrieve, modify, and delete Subscriber Content using the Software and the Services; and create Subscriber Technology using Software and the Services. Subscriber shall not modify or delete any Data or information except Subscriber Content.
Section 2.04 – Password: ITC shall assign Subscriber a Password for purposes of accessing the Software and using the Services during the Term. Subscriber hereby accepts responsibility for, and shall be liable for, all access to the Software, Data and Services in connection with the Password. Subscriber shall access the Software and the Services only using the Password. Subscriber shall be responsible for the confidentiality and maintenance of the Password. Modification and termination of the Password shall be subject to written approval of ITC. All assignments of the Password by Subscriber shall be void.
Section 2.05 – Unauthorized Access: Subscriber shall prevent Unauthorized Users from accessing the Software and the Services using the Password.
Section 2.06 – Lawful Purpose: Subscriber represents and warrants that Subscriber access to the Insurance Website Builder Technology shall not violate any contract, statute, rule, regulation or other obligation under which Subscriber is bound. Subscriber represents and warrants that Subscriber shall not access the Insurance Website Builder Technology or Services to conduct or solicit the performance of any business or activity that is tortious or prohibited by law.
Section 2.07 – Policy Statement: Subscriber shall comply with the Policy Statement. ITC may modify the Policy Statement from time to time in the exclusive discretion of ITC. Such modified Policy Statement shall be deemed accepted and approved by Subscriber upon notice to Subscriber as provided under Section 8.09 of this Agreement.
Section 2.08 – Reasonable Assistance: All telephone consultations shall be subject to the discretion of ITC. If Subscriber requires an excessive amount of telephone consultations with ITC concerning use of the Software or Services (as determined in the exclusive discretion of ITC) Subscriber shall request Consulting Services performed by ITC.
Section 2.09 – Subscriber Content Distribution Network: Through execution of the Services, ITC may place Subscriber Content on ITC owned website properties for the purposes of driving search engine, lead, referral and citation traffic to Subscriber's Domain Name. These ITC owned properties may include but are not limited to getitc.com, insurancewebsitebuilder.com, iwantinsurance.com and coveragehound.com. ITC may backlink to these properties upon Subscriber's Domain Name for the purposes of building relevant content backlinks. At no cost, subscriber may opt-out of the Subscriber Content Distribution Network by providing written notice to ITC. By opting out of the Subscriber Content Distribution Network Subscriber will not be listed on lead generation sites owned by ITC contrary to advertised features available within the Software.ARTICLE III : HOSTING SERVICES
Section 3.01 – Hosting: During the Term, ITC shall host the Subscriber Technology on the System to provide Subscriber access to the Subscriber Technology on the Internet. Subscriber hereby acknowledges and agrees that access to the Subscriber Technology requires that the Subscriber Technology be hosted on the System. During the Term, ITC shall be responsible for all direct costs incurred by ITC to host the Subscriber Technology. Upon termination or cancellation of this Agreement, ITC shall no longer host the Subscriber Technology and Subscriber shall not have access to the Subscriber Technology. Upon request by Subscriber and approval of ITC in writing, ITC shall assist Subscriber to transfer the Subscriber Content to Subscriber or a third party upon termination or cancellation of this Agreement. Subscriber Content may be removed from ITC’s system ninety (90) days after termination or cancellation of this Agreement.
Section 3.02 – Back-Up: ITC shall perform routine backup of all files stored on the System.
Section 3.03 – Domain Name Registration: Subscriber hereby acknowledges and agrees that Subscriber shall be responsible for registering and the pointing of an existing Domain Name(s) for the Subscriber Technology with a Registration Company, except as otherwise agreed by the parties. Upon request by Subscriber in the Subscription Application and payment of the Registration Fee, ITC shall apply to register Subscriber’s desired Domain Name with a Registration Company. In the event such desired Domain Name is not available, rejected, or opposed by a third party, ITC shall explain to Subscriber in writing the reasons for the unavailability or rejection of such Domain Name. Upon request by Subscriber, ITC shall apply to register another Domain Name subject to the foregoing procedures. ITC shall use Subscriber’s registered Domain Name as specified by Subscriber to host the Domain Name and the Subscriber Technology on the System. Upon termination or cancellation of this Agreement, ITC shall no longer host the Domain Name and Subscriber will be permitted to transfer the domain name to a third-party registrar, at no charge, pending the Subscriber's account is in good standing.
Section 3.04 – Internet Access Accounts: The Services provided to Subscriber by ITC do not include Internet Service Provider (ISP) accounts or dial up accounts. Subscriber hereby acknowledges and agrees that ITC shall have no obligation to provide Subscriber access to the Internet. Subscriber shall be solely responsible for acquiring, purchasing, installing, configuring, maintaining, updating, and implementing the computer system for accessing the Internet, including (without limitation) computer software, Internet access software, computer hardware and telecommunication equipment and all fees, costs, and expenses in connection therewith. ITC is not responsible for the uptime or connectivity Subscriber's Internet Access Account that may prevent access to the Services.
Section 3.05 – Service Level: The Subscriber Technology shall be made available to Subscriber twenty four (24) hours a day, seven (7) days a week, less downtime that is attributable to: (i) scheduled network, hardware, or service maintenance; (ii) the acts or omissions of Subscriber or Subscriber's employees, agents, contractors, or vendors gaining access to the Software by means of Subscriber's Password; or (iii) 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 network (collectively, the "Excusable Downtime").
Section 3.06 – Conversion: Subscriber hereby acknowledges that ITC may remove, migrate, or convert (as the case may be) the Subscriber Content and Subscriber Technology from the Software from time to time, for the purposes of maintenance, installation, updates, replacements, backup, or modifications to the Software or Services.
Section 3.07 – Email: ITC hosted email addresses will be disabled after 90 days of inactivity and deleted after 180 days of inactivity. Inactivity is measured by the lack of login to any given email account during the specified time period.
Section 3.08 – Form Submissions: ITC hosted form submissions are stored for forty-five (45) days after submission.ARTICLE IV : TERM OF AGREEMENT
Section 4.01 –Term: This Agreement shall be valid for the Term. The Term shall automatically renew on that certain numeric day of the next succeeding monthly occurrence of the numeric day that is the same numeric day of the Effective Date unless this Agreement is earlier terminated or canceled as provided hereunder.
Section 4.02 – Termination Limitations: This Agreement shall only be terminated or canceled as provided under this Article IV.
Section 4.03 – Termination: Either party may terminate this Agreement for convenience upon providing thirty (30) days advance written notice of termination to other party.
Section 4.04 – Cancellation for Cause: If Subscriber fails to comply with any obligation under this Agreement, ITC may cancel this Agreement by sending Cancellation Notice describing the noncompliance to Subscriber. Upon receiving Cancellation Notice, Subscriber shall have ten (10) days from the date of such notice to cure any such noncompliance. If such noncompliance is not cured within the required ten-day period, ITC shall have the right to cancel this Agreement as of the eleventh (11th) day following the date of the Cancellation Notice.
Section 4.05 – Shut-off: Notwithstanding Sections 4.03 and 4.04, ITC shall have the right to disable and deny the Password and cancel the Agreement without notice upon Subscriber violation of Section 2.06 or upon ITC receipt of notice from a third party challenging use of the Software and Services by Subscriber.
Section 4.06 – Deactivation and Removal: Upon termination or cancellation of the Agreement, ITC shall have the right to disable and deny the Password and cease all Subscriber access to the Insurance Website Builder Technology and Services. Upon termination or cancellation of the Agreement, ITC shall remove, migrate or convert (as the case may be) the Subscriber Technology and ITC shall destroy all Subscriber Content in its possession, except as otherwise agreed by the parties as follows. Subscriber Content may be removed from ITC’s system ninety (90) days after termination or cancellation of this Agreement. Upon request by Subscriber and approval by ITC in writing, ITC shall assist Subscriber to transfer the Subscriber Content to Subscriber or a third party. Subscriber shall be responsible for and shall pay all fees and costs in connection therewith. Subscriber shall destroy or return (as requested by ITC) any copies of Deliverable, Documentation, or ITC property in possession of Subscriber.
Section 4.07 – External Links: ITC may place links to third party sites on behalf of the customer that may contain advertising. That advertising might include links, graphics or copy for competing services and companies. These links could be posted to social media sites, blogs, in newsletters, or any other digital medium. External links are reviewed at the time of publishing. ITC is not responsible for the content of the external links, because: (i) ITC does not produce or maintain them; (ii) ITC cannot change them; or (iii) Content on external links can be changed without ITC's knowledge.ARTICLE V : FEES
Section 5.01 – Subscriber Fee: Subscriber shall pay the Subscriber Fee to ITC in advance of each Term as set forth in the Fee Schedule. Neither the Subscriber Fee nor any portion thereof shall be refunded by ITC in the event of termination of this Agreement by Subscriber or cancellation of this Agreement by ITC. ITC shall have the right to modify the Fee Schedule from time to time upon providing Subscriber advance written notice of such modifications.
Section 5.02 – Costs: Subscriber shall pay all costs incurred in accessing the Insurance Website Builder Technology and using the Services, including (without limitation) all telecommunications charges.
Section 5.03 – Consulting Services: Any Consulting Services provided by ITC to Subscriber shall be invoiced to Subscriber by ITC at the time and material rates of ITC prevailing at the time such services are rendered as set forth in the Fee Schedule.
Section 5.04 – Invoice: Subscriber shall pay any invoices submitted by ITC to Subscriber (in printed or electronic form) for fees and expenses in connection with the Software, Services, and Consulting Services. Customer shall pay any such invoice in full on the due date thereof or within ten (10) days of receiving such invoice (whichever is earlier).
Section 5.05 – Late Fee: Any amount of money which is not paid by Subscriber when due shall be increased by a late fee equal to 1Â½% of such unpaid amount for each month (or any portion thereof) in which such amount is due and not paid.
Section 5.06 – Failure to Pay: Notwithstanding Section 5.05,
Subscriber failure to pay any amount (or any portion thereof) when due shall
constitute a material breach of the Agreement and shall be sufficient cause for
cancellation of the Agreement as provided under Section 4.04.
Section 6.01 – Ownership and Title: Title to the Insurance Website Builder Technology (excluding Licensed Content, Subscriber Content, and Subscriber Technology), including ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of ITC.
Section 6.02 – Reverse Engineering: Customer shall not reverse engineer the Software and shall use reasonable efforts to prevent reverse engineering of the Software.
Section 6.03 – Modifications: Subscriber shall not copy the Software and Documentation and shall not allow the Software and Documentation to be copied without the prior written consent of ITC. Subscriber shall not modify the Software and Documentation and shall not allow the Software and Documentation to be modified without the prior written consent of ITC. If the Software or Documentation is modified, such modifications shall be the sole and exclusive property of ITC and ITC shall own any and all of the rights, title, and interests to such modifications, including (but not limited to) any and all copyrights, patents, and trade secrets related thereto.
Section 6.04 – Proprietary Information: Subscriber shall not disclose Proprietary Information except to Authorized Persons. Subscriber shall hold Proprietary Information in strict confidence and shall not duplicate, use or disclose Proprietary Information except as otherwise permitted under this Agreement. Subscriber hereby acknowledges and agrees that the Proprietary Information derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements.
Section 6.05 – No Contest: Subscriber shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets of ITC in connection with the Insurance Website Builder Technology.
Section 6.06 – Employee Pirating: Subscriber shall not induce or solicit (directly or indirectly) any Associate of ITC to leave the employ or hire of ITC or engage (directly or indirectly) the services of such Associates (as an employee, consultant, independent contractor or otherwise) without the prior written consent of ITC.
Section 6.07 – Noncompete: Subscriber shall not
(directly or indirectly) promote, advertise, market or provide any product or
service similar to or competitive with the Software or Services.
Section 7.01 – Warranty: ITC hereby represents and warrants that the Services shall be provided on a reasonable efforts basis and shall conform to the standards generally observed in the industry for similar services.
SECTION 7.02 – WARRANTY LIMITATION: THE WARRANTY SET FORTH IN SECTION 7.01 IS IN LIEU OF ALL OTHER WARRANTIES BY INSURANCE TECHNOLOGIES CORP, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY. EXCEPTING THE WARRANTY SET FORTH IN SECTION 7.01, DIGITAL ITC HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. INSURANCE TECHNOLOGIES CORP DOES NOT GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF THE SOFTWARE. ITC DOES NOT MAKE ANY WARRANTY AND SUBSCRIBER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF THE SOFTWARE. SUBSCRIBER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF SUBSCRIBER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND THE POLICY STATEMENT GOVERNING THE SERVICES. ITC SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR HARM OR DAMAGES RESULTING FROM OR ARISING OUT OF SUBSCRIBER INABILITY TO USE THE SERVICES.
Section 7.03 – Inaccuracies: Subscriber hereby acknowledges that the Data may contain errors, inaccuracies, and omissions. ITC shall not be responsible for editing, correcting, modifying, reviewing, or deleting any such Data. Subscriber shall assume any and all risk of loss, harm or damage associated with Subscriber access to and use of the Insurance Website Builder Technology.
Section 7.04 – Express Warranties: Subscriber hereby acknowledges and agrees that ITC (including officers, employees, agents, directors, and independent contractors of ITC) has not made or granted to Subscriber any express warranties concerning the Insurance Website Builder Technology, excepting the warranty in Section 7.01.
Section 7.05 – Limitation of Damages: ITC shall not be liable to Subscriber for any lost profits or consequential, exemplary, incidental or punitive damages, regardless of whether ITC has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding any provision to the contrary, the liability of ITC for any reason and for any cause of action whatsoever in connection with the Insurance Website Builder Technology shall be limited to the Subscriber Fee for one calendar year of access.
Section 7.06 – Force Majeure: ITC shall not be liable to Subscriber for failing to perform its obligations hereunder because of circumstances reasonably beyond the control of ITC. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, acts of God, computer failure, hardware failure, telecommunications failure, software failure, failure of Subscriber to cooperate with the reasonable requests of ITC, breach of this Agreement by Subscriber, and any other events reasonably beyond the control of ITC.
Section 7.07 – Content Warranty: Subscriber represents and warrants that any and all information provided by Subscriber in connection with this Agreement, the Subscriber Application, the Password and the Services shall be true, accurate, complete and current.
Section 7.08 – Indemnification: Subscriber shall release, defend, indemnify and hold harmless ITC from and against any and all claims, liability, losses and damages arising in connection with: (1) Subscriber access to the Insurance Website Builder Technology; (2) use of the Services by Subscriber; (3) the Subscriber Content and the Subscriber Technology; and (4) breach of this Agreement by Subscriber.
Section 7.09 – Export Assurance: Subscriber shall not disclose, export, distribute or transfer any Data to any third party individual or entity or any division, affiliate or subsidiary of Subscriber located in any country other than the United States. Subscriber shall not perform any act in conflict with or in violation of the export laws and regulations of the United States.
Section 7.10 – Subscriber Warranty: Subscriber hereby represents and warrants that Subscriber possesses all necessary rights, title, and interest in the Subscriber Content and Subscriber Technology, free and clear of any encumbrances, third-party interests, and restrictions for purposes of using the Software and Services.
Section 7.11 – Loss of Subscriber Content: Programming, software design errors, maintenance of the Software and Services, or unauthorized access to the Software and Services may result in the loss of Subscriber Content. ITC shall not be responsible for any loss of Subscriber Content.
Section 7.12 – Merchantability Limitation: Subscriber is
solely responsible for determining whether the Software and Services are suited
for Subscriber’s needs and the results obtained from the Software and Services.
ITC makes no claim that the Software and Services are suitable for
the needs of Subscriber.
Section 8.01 – Assurances: Subscriber represents and warrants that all representations, warranties, recitals, statements and information provided to ITC under this Agreement and the Subscriber Application are true, correct, and accurate as of the Effective Date.
Section 8.02 – Entire Agreement: This Agreement contains the entire understanding of the parties relating to the Insurance Website Builder Technology and supersedes all previous verbal and written agreements between ITC and Subscriber relating to the Insurance Website Builder Technology. The Subscriber Application, Policy Statement, and Fee Schedule (as modified by ITC from time to time) are incorporated herein by this reference and made a part of this Agreement.
Section 8.03 – Continuation: The terms and provisions of Sections 4.06 and 5.01 and Articles I, VI, VII and VIII of this Agreement shall survive termination and cancellation of this Agreement.
Section 8.04 – Amendments and Modifications: Excepting modifications to the Policy Statement and Fee Schedule, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by the parties hereto.
Section 8.05 – Severability: If a provision of this Agreement is rendered invalid the remaining provisions shall remain in full force and effect.
Section 8.06 – Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
Section 8.07 – Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 8.08 – Governing Law: This Agreement is governed by the laws of the State of Texas, without regard to any rules of conflict or choice of laws that require the application of laws of another jurisdiction, and venue shall be Dallas, Texas.
Section 8.09 – Subscriber Notice: All notices shall be in writing. Notices to Subscriber shall be deemed delivered when delivered electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand to an address set forth for Subscriber on the Subscriber Application. Notices to Subscriber shall be deemed given on the date notice is delivered electronically or by hand to Subscriber or on the date of receipt by Subscriber (as evidenced in the case of Certified or Registered Mail by Return Receipt), whichever occurs first. Notices delivered to Subscriber electronically (including, without limitation, electronic mail) shall be deemed written notices.
Section 8.10 – ITC Notice: Notices to ITC shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested - or by hand to the person and address set forth below for ITC. Notices to ITC shall be deemed given on the date notice is received by ITC (as evidenced in the case of Certified or Registered Mail by Return Receipt).
ITC 1415 Halsey Way, Suite 314, Carrollton, Texas 75007
Section 8.11 – Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular or plural, as the context shall require.
Section 8.12 – Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy to ITC. In addition to all other remedies that may be available at law or equity, ITC shall have the rights of specific performance and injunction in the event of a breach or threatened breach of this Agreement by Subscriber.
Section 8.13 – Bankruptcy: If any party must institute, defend, appear, or attend a bankruptcy proceeding as a result of the filing of bankruptcy by another party, the filing party shall pay fees and expenses. If any party has a bankruptcy proceeding filed against it, the other party shall recover attorney fees, expert witness fees, and other costs incurred by such other party in connection with the bankruptcy proceeding, hearing or trial.
Section 8.14 – Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
Section 8.15 – Assignments: Any and all assignments of rights hereunder by Subscriber shall be void.
Section 8.16 – Public Announcements: All public announcements concerning the Insurance Website Builder Technology or the relationship of Subscriber and ITC under this Agreement shall be subject to the prior written approval of ITC.
Section 8.17 – Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
Section 8.18 – Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).