Terms and Conditions

This Exhibit A to the One80 Network Solutions Agent Agreement (this "Exhibit") is incorporated into the Agreement.  Capitalized words not otherwise defined in this Exhibit have the meaning as stated in the Agreement. 

1. Definitions

1.1    “Bronze” means the network level in which Agent is a user with the ability to quote business with access to EZ Lynx and personal lines quote platform.  Agent may not bind business on this level.

1.2    “Contingency” means an offering available at the Gold and Platinum network levels in which when One80 is eligible and paid contingency, and Agent meets the same eligibility requirements, One80 pays Agent according to Table A. 

1.3    “Competitive Business” means, any business that, in the Territory, directly or indirectly, is in competition with the Business Operations.

1.4    “Confidential Information" means information of a commercial, proprietary, or technical nature, whether now in existence or hereafter created, including without limitation (i) information marked as “confidential” or similarly marked, or information a party should, in the exercise of reasonable judgment, recognize as confidential; (ii) Intellectual Property of One80, Insurer, Agent, or Insured/potential Insureds; (iii) Identification Information; (iv) the business, financial, or technical information of each party and their respective affiliates; (v) any Insured’s information; (vi) each party’s marketing philosophy and objectives, promotions, markets, materials, financial results, technological developments and other similar proprietary information and materials; and (vii) notes, memoranda, analyses, compilations, studies, and other documents, whether prepared by either party or for either party, which contain or otherwise reflect Confidential Information.

1.5    “EZ Lynx” means proprietary, web-based insurance management platform hosted by Applied Systems, Inc. and provided by One80, which enables insurance agencies, carriers, and related users to manage quoting, rating, policy administration, customer relationship management, and related workflow functions through a single, integrated system.

1.6    “Gold” means, the network level where Agent may quote, bind, and service business through a Carrier’s website with a gross written premium minimum of $1,000,000.00. 

1.7    “Identification Information" means legal names, physical street addresses, taxpayer identification numbers, dates of birth, or other information or documentation.

1.8    “Insured” means any natural person, legal entity, or other party who is expressly identified in an insurance policy or agreement as being entitled to coverage, benefits, or indemnification under the terms and conditions of that policy. 

1.9    “Intellectual Property” or “Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trade names, service marks, moral rights, know-how, and any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations, or reissues of the foregoing now or in the future. 

1.10  “Obligations” means all costs, expenses and fees (including the reasonable fees and expenses of One80's counsel) in any way relating to the enforcement or protection of One80's rights under this Agreement.

1.11  “One80 Rules” means rules, policies, and procedures, as adopted, amended, and restated from time to time in One80’s sole discretion.

1.12  “Marks” means the names, trademarks, service marks, symbols, logos, domain names, and trade names of the respective parties and their affiliates. 

1.13  “Platinum” means the network level where Agent may quote, bind, and service business through a Carrier’s website with a gross written premium of $2,000,000.00, where Agent is either appointed with a Carrier or given user access to a Carrier. 

1.14  “Protected Group” means One80 and its affiliates, subsidiaries, and parent companies.

1.15  “Representatives” means employees, members, managers, directors, shareholders, agents, contractors, sub- contractors, consultants, affiliates, and any other party employed or engaged in connection with a party’s performance hereunder. 

1.16  “Silver” means the network level where Agent may quote, bind, and service business through a Carrier’s website with no minimum gross written premium.

1.17  “Trade Secrets” means business, creative and technical information of the Protected Group, whether written, electronic or oral, including, but not limited to, the Protected Group’s business plan; marketing strategy; strategic plans; account information; financial condition; customer lists, records pertaining to current and future customers, clients, independent Agents or suppliers; processes; procedures; data bases; methods; techniques; plans; design specifications or criteria; systems; compilations; and other materials that the One80 or the Insureds attempt to maintain in secret and that derive commercial value from not being publicly known or readily ascertainable through independent development or reverse engineering.

1.18  “Transfer” means a merger, acquisition, consolidation, divestiture, change of control, asset transfer, amalgamation, proceeding under bankruptcy laws, or any other transfer, reorganization, or sale (in whole or in part). 

1.19  “Territory” means the defined territory outlined in the Agreement.  Do I need to obtain E&O Insurance directly or will your company provide E&O Insurance?

2. Covenants

One80, in its sole discretion, retains the right to add, amend, change, suspend, or terminate Agent’s appointment with Insurers.

2.1 Premium Payment.  Agent will remit the total payment due on or before the inception date of each binder or policy.  All other payments are due 15 days after invoice date. 

2.2 Expirations.  Provided Agent has paid all premiums for which it may be liable, Agent’s records, and the use and control of expirations, are the property of Agent and left to its undisputed possession and control. 

2.3 Competition Covenant.  From the Effective Date until 3 years following the termination of this Agreement (the “Restricted Period”), Agent and Principal shall not, for their own account or for the benefit of any other person or business entity, or through one or more intermediaries, without the prior written consent of One80:

(a)  Solicit or induce, or in any manner attempt to solicit or induce, any customer, supplier, vendor, sub-contractor, or contractor of the Protected Group to cease its relationship with or to divert or interfere with the relationship between such party and the Protected Group; and

(b)  In the event of a termination initiated by Agent, if the Termination Fee and all other amounts required under to be paid pursuant to the termination of this Agreement by Agent are not paid when due, Agent will not engage or participate in, own any interest in, provide any financing for, perform any services for, or act in any other capacity for, either as an employee, employer, consultant, contractor, principal, partner, member, manager, director stockholder, investor, financial participant, corporate officer, director or in any other individual or representative capacity, any other person or legal entity which engages or participates in any Competitive Business within the Territory; or accept any sales commissions, bonuses or other payments, compensation or remuneration from any other person or legal entity which engages or participates in any business or activity that constitutes a Competitive Business until the expiration of the Restricted Period.

2.4 Insurance Requirements. Agent will maintain required bonds, errors and omissions insurance, business liability insurance, and other forms of insurance, all in accordance with industry standards and in each case to the reasonable satisfaction of One80.

2.5 Accounts and Records.  Agent will maintain accurate records concerning all business transacted pursuant to the Agreement.  All records, books of accounts, and documents of any kind connected to the Agreement are open to inspection and audit by One80. 

2.6 Claims.  Agent will promptly report all claims and/or losses to One80.  Agent has no authority to assign losses to be adjusted, negotiate, or settle any loss.  Agent will cooperate in facilitating the adjustment, negotiation, or settlement or payment of all claims. 

3. Default

3.1 Event of Default.  Agent will be in default of the Agreement upon the occurrence of any of the following events: (i) any violations of the rights and obligations sent forth in section 4 (Security and Confidentiality) and/or section 5 (Intellectual Property); (ii) any representations and/or warranties herein fail to be true and correct during the course of this Agreement; (iii) any failure to pay One80 monies due under this Agreement; or (iv) any violation of any other covenants, conditions, or provisions set forth in this Agreement (each, a “Default”).

3.2 Cure.  Agent shall cure any Default occurring under section 4 within 5 days of notice of the Default.  Agent shall cure any Default occurring under section 5 within 15 days of notice of the Default. 

3.3 Remedies.  In a Default (after the notice and cure period), in addition to any other remedies in equity or at law, One80 may immediately terminate the Agreement, collect any amount directly or indirectly related to the Default, including any fees or losses, and reasonable court and/or attorney costs.  If Agent violates its obligations under section 4 (Security and Confidentiality) or section 5 (Intellectual Property), in addition to the foregoing, One80 is entitled to injunctive relief in its favor and to specific performance without proof of actual damages and without the requirement of posting any bond or similar security. 

3.4 Cumulative Remedies.  Except as expressly provided elsewhere in this Agreement, each party’s rights and remedies under this Agreement are cumulative and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise available to that party. 

3.5 Non-Waiver.  No failure or delay by either party to exercise any right, remedy, power, or privilege provided under this Agreement or by applicable law will operate as a waiver thereof; nor will any single or partial exercise of any such right, remedy, power, or privilege preclude any other or future exercise thereof of the exercise of any other right, remedy, power, or privilege.

4. Security and Confidentiality

4.1 Security. 

(a)  Security Requirements.  The parties will maintain an information security program designed to (i) secure and maintain confidentiality of information; (ii) protect against anticipated threats and hazards to security; (iii) protect against any unauthorized access to or use of information that could result in substantial harm or inconvenience to an Insured whose information is compromised; and (iv) comply with applicable laws and regulations.  The parties will secure and protect Confidential Information using at least the same degree of care as it uses to secure and protect its own, but no less than reasonable degree of care as determined by the nature of this Agreement and the highest industry standards to prevent the unauthorized use, disclosure, or duplication (except as required for backup systems) of Confidential Information.

(b)  Security Breach.  The parties shall immediately notify each other by telephone and in writing of any security breach that may have compromised Confidential Information, and of any unauthorized disclosure or misappropriation for such Confidential Information that may come to attention.

4.2 Confidentiality. 

(a)  Each party may have access to, and each party may provide to the other party, Confidential Information. Confidential Information does not include information that is: (i) already rightfully known to the receiving party at the time it becomes Confidential Information from the disclosing party; (ii) or becomes generally available to the public other than as a result of disclosure in breach of this Agreement or any other confidentiality obligations between the parties; (iii) received on a non-confidential basis from a third party reasonably believed to be authorized to disclose such information without restriction and without breach of this Agreement; (iv) contained in, or is capable of being discovered through examination of, publicly available records or materials; or (v) independently developed by One80 or Agent without the use of any proprietary, non-public information provided by the other party. 

(b)  Each party will hold Confidential Information in confidence and disclose Confidential Information only to those employees or agents whose duties reasonably require access to such information.  Each party will cause its affiliate, agents, employees, independent contractors, and parents to hold and maintain Confidential Information in confidence, and will use and disclose Confidential Information only for the purpose of performing its obligations, exercising or enforcing its rights, or as otherwise permitted by this Agreement.  Each party will immediately return or certify destruction of all Confidential Information in its possession or control that belongs to the disclosing party, upon the request of the disclosing party.  Any Confidential Information maintained in electronic backup will returned to the Confidential Information owner in an industry standard format, or, at the option of the disclosing party, deleted or removed from all computers, electronic databases, and other media (other than copies retained on automatically generated electronic backup or disaster recovery files that are accessible solely by those individuals whose duties expressly include maintaining such electronic backup or disaster recovery files).  Each party may maintain one archived copy of Confidential Information solely for compliance purposes and subject to the terms of this Agreement. 

(c)  Each party will promptly provide the disclosing party notice of any legal request (including action by a court or governmental agency) for disclosure of any Confidential Information, so the disclosing party may seek an appropriate protective order, only to the extent required by applicable law or Regulatory Authority. 

(d)  Neither party will make any “case study,” testimonial, press release, or other public announcement regarding this Agreement or any activities performed hereunder, unless part of an approved Referral Program.

5. Intellectual Property

The Protected Group retains all rights, titles, and interest in and to all Intellectual Property (including, but not limited to, Trade Secrets, customer lists, trademarks, trade dress, patents and copyrights) and Agent shall not use any Intellectual Property except as expressly approved in writing and in advance by One80.  Agent shall not use One80’s name on any stationery, business cards, telephone listings, or any other written or printed material, on a web site or by broadcast medium without the prior written approval of One80.

6.   Indemnification and Limitation of Liability

6.2 General Indemnification.  Except to the extent of the negligence or willful acts or omissions of One80 and its employees, agents, or contractors, Agent indemnifies One80 and its agents, officers, directors, employees, and contractors against and from any claims, actions, demands, damages, injuries, injunctions, suits, fines, penalties, costs, and expenses and liability whatsoever (including reasonable attorneys’ fees), by any person, entity, or governmental authority arising in connection with any claims arising out of: (i) Agent’s actual or alleged infringement of any patent, copyright, trademark, trade secret, or other property or contract right of any other person; (ii) Agent’s failure to promptly pay sums due to third parties; (iii) Agent’s actual or alleged violation of any law, rule, regulation, or authority; (iv) Agent’s negligent or intentional act or omission; or (v) Agent’s Default. 

6.2 Indemnification Procedures.  One80 will notify Agent of any claim asserted and each action or suit filed or served, and provide Agent a copy of any written documentation received in relation to the claim for which One80 is seeking indemnification, provided, however, that the failure to provide such notice does not relieve Agent of its obligations under this section.  Agent may thereafter assume control of such a claim, provided that One80 may participate in the defense or settlement of such a claim.  One80 may employ counsel at its own expense to assist it with respect to any such claim.  Notwithstanding the foregoing, if such counsel is necessary because of a conflict of interest with Agent and its counsel or because Agent does not assume control, Agent will bear the expense of such counsel.  Agent may not settle any claim, admit to any liability, or consent to any judgment with respect thereto without One80’s consent, (which consent may not be unreasonably withheld, delayed, or rejected).  Agent is not obligated to indemnify and defend One80 with respect to a claim or portions of a claim, if One80: (a) fails to promptly notify Agent of the claim and fails to provide reasonable cooperation to defend or settle such claim; and (b) if, and only to the extent that, the failure materially prejudices Agent’s ability to satisfactorily defend or settle the claim. 

6.3 Limitation of Liability.  The parties, and the parties’ affiliates, are not liable to each other for any consequential, special, indirect, or punitive damages of any nature (including lost profits), regardless of whether the parties have been advised of the possibility of such damages. 

7. Term; Termination

7.1 Term. The term of this Agreement is one year from the Effective Date (the “Term”). The Agreement will automatically extend for consecutive one-year periods at the end of the Term unless either party provides 180 days’ prior written notice of termination prior to the expiration of the Term. 

7.2 Agent Termination.  Agent may terminate this Agreement for any or no reason upon One80’s receipt, without demand, of 30 days’ prior written notice and payment for 50% of the last 12 months’ commission. 

7.3 One80 Termination. One80 may terminate this Agreement for any, or for no reason, upon 60 days’ prior written notice to Agent.  One80 may also terminate this Agreement immediately upon any of the following events:

(a)  Agent’s failure to comply with section 14.1 (Compliance with Applicable Statutes and Regulations) or to maintain required licenses, permits, and/or continuing education;

(b)  Agent’s failure to meet obligations under this Agreement, including without limitation: (i) obligations to submit funds in a timely manner to One80; (ii) unprofessional conduct that is in contrast to good business practices; (iii) actions that are disparaging or detrimental to the reputation and brand image of One80, its Insurers, or business partners; and/or (iv) Agent’s failure to allow One80 to audit Agent;

(c)  One80’s determination that this Agreement runs counter to any existing, new, or amended law, regulation, regulatory interpretation, or anticipated regulatory interpretation, or any enforcement of any existing, new, or amended law, regulation, regulatory interpretation, or anticipated regulatory interpretation. 

In the event One80 terminates this Agreement, Agent shall make all payments due to One80 within 15 days of termination.

7.4 Mutual Termination.  Either party may terminate this Agreement immediately, by written notice of termination to the other party, upon one or more of the following events:

(a)  dissolution or insolvency of the other party;

(b)  the filing of a bankruptcy or insolvency proceeding, the appointment of a receiver or trustee for the benefit of creditors, or the other party enters into an arrangement with its creditors; or

(c)  any material and adverse change to the financial condition of the other party or its affiliates. 

8. Assignment, Transfer

8.1 No Assignment. This Agreement may not be assigned by Agent without One80’s prior written consent, and any such attempted assignment will be void and of no effect. One80 will not be required to seek or obtain Agent’s consent in connection with any assignment by One80.

8.2 Change of Ownership. Any sale of all or substantially all of the assets of Agent or any change in control of Agent during the Term (as defined herein) or at any time during the three year period after the termination of this Agreement, shall constitute an assignment of this Agreement (in each case, a “Ownership Assignment”).  One80 reserves right of first refusal on any Ownership Assignment of Agent.  Agent will provide an offer 30 days prior to the closing of any Ownership Assignment.  One80 has 30 days after receipt of such notice (the “Acceptance Period”) to accept Agent’s offer.  Any definitive agreement(s) memorializing any Ownership Assignment must contain restrictive covenants substantially similar to those contained herein, effective for at least three years after Ownership Assignment. If One80 refuses Agent’s offer or fails to accept such offer during the Acceptance Period, Agent may complete any proposed transaction involving an Ownership Assignment.  Agent remains subject to the Restricted Period after an Ownership Assignment.

9. Force Maejure and excusable Delay

9.1 Except duties to pay compensation, neither party is responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or Internet service interruptions, or other acts or causes reasonably beyond the control of that party.  The party facing the force majeure event will: (i) implement its applicable disaster recovery plan; (ii) give the other party prompt notice of the occurrence of a force majeure event; (iii) use diligent efforts to re-commence performance as promptly as commercially practicable pursuant to its disaster recovery plan; and (iv) provide periodic updates to the other party regarding its efforts to re-commence performance until performance has re-commenced in accordance with this Agreement.

9.2 Either party may terminate this Agreement upon written notice to the other, if the non-terminating party is unable to perform a material portion of its obligations as a direct result of a force majeure event for more than 30 consecutive days.  Delay in either party’s performance is excused to the extent performance is delayed solely due to an act or omission of the other party. 

10. Miscellaneous

10.1     Compliance with Applicable Statutes and Regulations.  The parties shall maintain compliance with all laws, statutes, regulations, regulatory guidance, and One80 Rules applicable to this Agreement.  Agent and Agent’s employees will hold the licenses required to carry out the services contemplated herein and will promptly inform One80 in writing of any suspension, revocation, surrender, or penalty related to licensing. 

10.2     Governing Law and Venue.  The laws of the state of Delaware and applicable federal laws and regulations of the United States apply to any dispute arising out of or related to this Agreement, its subject matter, or its formation.  Any dispute or claim arising out of or related to this Agreement must be brought before a state or federal court located in the city of Wilmington, Delaware.  Each party irrevocably waives any objection that such court is an inconvenient forum. 

10.3     Severability.  If any provision of this Agreement is found to be invalid, illegal, or otherwise unenforceable, the validity, legality, and enforceability of the remaining provisions will in no way be affected or impaired thereby.

10.4     Complete Agreement.  This Agreement constitutes the complete understanding between the parties with respect to this subject and all prior oral and written communications and agreements on this subject are superseded.  This Agreement may only be amended via written instrument signed by both parties.  This Agreement will not be construed against either party due to authorship.  The recitals and any documents attached hereto are incorporated into this Agreement as if set forth at length herein. 

10.5     Headings.  Headings or captions of paragraphs or sections of this Agreement are for convenience of reference only and shall not be considered in the interpretation of this Agreement.

10.6     Third Party Beneficiaries.  Except as stated in this Agreement with reference to any Insureds or successors and assigns of the parties, no provision of this Agreement is intended to be a third party beneficiary contract, nor create or vest any third party beneficiary rights, interests, or privileges in favor of any entity other than Agent and One80.

10.7     Authority to Enter Contract.  The parties represents and warrants that: (1) each has the full right, power, and authority to enter into this Agreement, to grant the rights provided hereunder, to perform its obligations hereunder, and such performance hereunder does not and will not violate any contractual obligation or agreement with any third party (including any confidentiality or restrictive covenant arrangement); and (2) this Agreement will constitute the legal, valid, and binding obligation of both parties, enforceable in accordance with its terms.

10.8     Waiver of Jury Trial.  The parties hereby waive all rights to trial by jury in any proceeding related to this Agreement.