READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN ARBITRATION AGREEMENT, JURY AND CLASS ACTION WAIVERS, LIMITATIONS OF LIABILITY AND OTHER PROVISIONS THAT AFFECT YOUR LEGAL RIGHTS.
- Independent Contractor Status
Your relationship with the Company is that of independent contractor. Your relationship with Company is separate from that of the relationship with the carriers with which Company contracts (“Carriers”), and any requirements or mandates made by Carriers are not imputed to you from Company. You are not a partner, employee, or representative for Company, and cannot speak for or on behalf of Company. Any references made by any licensing body, company website, social media site and/or any document or form, referring to you or agents generally as “employees” of Company or its affiliates does not change that by definition and by practice you are an independent contractor pursuant to these Terms. You conduct and control your own business activities, manner and means of work, including, but not limited to, work hours, selection of customers, office location, and sales methods.
- Your Responsibilities and Authority
- Your Responsibilities. In the scope of your relationship with Company, your responsibilities are as follows:
- Provide and maintain an office or other place of work as well as any and all business expenses incurred in connection with the performance of services.
- Use your best efforts to attain and maintain an accurate working knowledge of the products and services provided by Company (“Products” and “Services”, respectively) and to solicit and sell (or assist Sub-Agents in selling) such Products and Services.
- Complete and promptly file with the Company all required reports documenting or regarding sales of Products and Services by you as well as insurance applications and other related matters which are required by the Company from time to time so that sales by you of the Products and Services can be appropriately recorded and commissions determined.
- Accurately represent premium costs and policy coverage to prospective customers and conduct yourself in an ethical and professional manner that reflects well on the reputation and professionalism of yourself, Company, and Carriers.
- Maintain all books, accounts, and records for at least ten (10) years to allow for Company and Carriers to audit your compliance with these Terms. A Carrier or Company may at any time make copies of, or take extracts from, such books, accounts and records as it may deem necessary.
- Truthfully provide Carriers and Company with all requested information and not withhold information (even if not requested) which an ordinary and prudent person would deem relevant to the solicitation and sale of the Products and Services or recruitment and recommendation of agents.
- Recruitment. You are authorized to recruit and recommend for contracting independent agents, brokers, and other acceptable producing representatives for Company and Carriers. For purposes hereof, all of the contracted agents, brokers, and other acceptable producing representatives within your production hierarchy which are duly contracted with and appointed by Carriers, including anyone such individual engages in the same or similar downline capacity, are referred to as “Sub-Agents”. Carriers and Company, jointly or individually, reserve the sole discretion and right to approve or reject the appointment of any Sub-Agent and terminate any Sub-Agent for cause or without cause, with or without Agent’s approval. You must obtain reasonable assurances from Sub-Agents that Sub-Agents will comply with these Terms. You are solely and strictly responsible for Sub-Agents’ performance, compliance with applicable laws, and compliance with these Terms.
- Limitation on Authority. Your authority shall not extend beyond the limited authority as set forth in these Terms. You have no authority to act in any way contrary to the laws and regulations governing the business of insurance or contract debts or obligations. You have no authority to bind or attempt to bind Company or its affiliates by any promise or agreement, including but not limited to, obligation to insure; or incur debt, expense, or liability in Company’s or its affiliates’ name. You may not (i) rebate any premiums or commissions to any party; (ii) endorse checks made payable to Company; (iii) advertise or publish any matter or thing concerning Company without filing a proposed copy of such material with Company and obtaining approval, signed by an officer of Company; or (iv) undertake any act on behalf of Company other than expressly authorized herein.
- Materials. Company or a Carrier will supply promotional materials and applications for Products and shall determine all Product forms and rates to be used in connection with the Resources, and you agree to use only those materials, applications, forms, and rates, except as otherwise expressly authorized by Company or Carrier. In addition, you may not print, publish, or use in any way any circular, advertisement, letterhead, telephone directory advertisement, or other matter or material that includes the name of or refers to Company or a Carrier or their marks unless Company has given advance written approval thereof.
- Communications from Company. You consent to communications from Company and its affiliates pertaining to the sale of Products and Services, including via email, texting, calls, recorded messages, and autodialer. You may opt out of communications at any time by submitting a request to opt out to Company.
- Social Media Policy. You may use third-party platforms, including social media accounts, for the solicitation and sale of the Products and Services and the recruitment or recommendation of Sub-Agents, provided that you (i) supply the Company with the handles or URLs linking to the profiles of these accounts; (ii) use these accounts in accordance with these Terms; (iii) agree to Company’s right to, upon notice to you, inspect, review, and potentially modify these accounts; and (iv) do not use these accounts in any way to violate or circumvent these Terms, including all obligations detailed in Section 3.1 below.
- Regulatory Obligations
- Licensure. You agree and agree to ensure that your Sub-Agents (i) obtain such professional licenses and Carrier appointments as necessary for you and Sub-Agents to sell the Products and Services, (ii) remain in good standing with respect to all such professional licenses and Carrier appointments, and (iii) remain knowledgeable about all laws, regulations, guidance, and Carrier requirements and obligations related to the Products and Services, including the successful completion of any specific or supplemental education or training programs.
- Monitoring, Reporting, and Corrective Action. Company retains the right to audit and monitor your records, accounts, and materials to ensure compliance with these Terms. You must notify Company immediately if you or a Sub-Agent receive any communication indicating that you or a Sub-Agent is or may be out of compliance with any regulatory, licensure, or Carrier requirements. In the event you engage in behavior which is unethical, violates applicable laws, regulations, guidelines, or these Terms, or harms the reputation of the Company or Carriers, the Company or Carriers may take appropriate corrective action, which may include additional training, immediate cessation of your marketing of Products and Services. You agree to cooperate in the course of and promptly address any such corrective action.
- Errors and Omissions Insurance. To the extent required by a Carrier, you shall, and shall ensure that all of you Sub-Agents, at all times carry Errors and Omissions liability insurance policy with the minimum coverage required by the applicable Carrier.
- Outbound Communications.
- You and your Sub-Agents may not contact (or engage another entity to contact) any individuals via an autodialer, automated text, prerecorded message, artificial voice message, any third-party dialing service for the purpose of promoting the Products or Services unless you or the Sub-Agent obtain a proof of “prior express written consent,” as defined in 47 C.F.R. § 1200(f)(9). Such consent must specifically identify the purpose for which the phone number is collected and the methods by which the recipient will be contacted.
- You and your Sub-Agents may not contact (or engage a vendor to contact) any individuals via a manual dial for the purpose of promoting the Products or Services unless you or the Sub-Agent obtain a proof of “prior express consent,” as defined in 47 C.F.R. § 1200. Such consent must specifically identify the purpose for which the phone number is collected.
- You and your Sub-Agents may not contact (or engage another entity to contact) any individuals who have not provided a prior express invitation to be contacted unless you (i) verify that the phone number is not on the Federal or State do-not-call registry and (ii) dial the number manually.
- You and your Sub-Agents must maintain an effective process by which individuals who request to opt out of communications are not contacted in the future.
- You and your Sub-Agents may not employ any deceptive or abusive practices when contacting prospective customers or agents.
- Protected Information about Customers. Except as necessary to carry out your duties under these Terms, you may not use or disclose personally identifiable information (“PII”, including financial or health information) about individuals who seek to obtain Products and Services through Company or its affiliates. You must treat PII as confidential, and limit access to PII to those individuals who need to use the information in connection with your services hereunder. You will establish appropriate safeguards for safeguarding the PII within your control.
- Relationships with Healthcare Providers. You may not, and shall ensure that your Sub-Agents do not, enter into any referral arrangements with healthcare providers, pursuant to which any you or your Sub-Agents receive anything of value from healthcare providers in exchange for the referral of individuals to the healthcare provider.
- Confidential Information. In the course of your relationship with Company, you will have access to confidential and proprietary information of Company and/or its affiliates, including, without limitation, (a) the methods and systems used in soliciting, selling, and providing Products and Services; (b) the names, addresses, telephone numbers, profiles, and other information regarding past, current, or prospective customer leads of the Company and its affiliates and of the Carriers; (c) information regarding the policies, and Products and Services; (d) policies, procedures, training information and techniques, commission structures, financial data, sales and marketing information; and (e) information concerning Company’s business relationship with the Carriers and its business relationship with other persons, firms, corporations, and other entities (individually and collectively referred to in these Terms as “Confidential Information”). For purposes of these Terms, Confidential Information shall be defined in its broadest possible terms as set forth above, specifically including, but not limited to, all information of the Company (including affiliate and predecessor entities), the unauthorized disclosure of which could be detrimental to the interest of the Company.
- Non-Disclosure. You may use Confidential Information solely to sell Products and Services and recruit agents. You may not, directly or indirectly, divulge, disclose, or communicate any Confidential Information to any person, firm, corporation or other entity for any reason except the direct performance of its responsibilities without the prior express written consent of the Company, unless such information: (a) is in the public domain through no wrongful act of yours; (b) has been rightfully received from a third party without restriction and without breach of these Terms; or (c) except as may be required by law.
- Ownership of Confidential Information. All Confidential Information developed, created or maintained by Company and any Company property which you obtained from Company during your relationship with Company shall remain at all times the exclusive property of Company, including, without limitation, lists and information regarding customer and agent leads, contact information of Sub-Agents or other agents otherwise associated with the Company, agent handbooks, and other policies. You agree to return to the Company all such property and Confidential Information, and reproductions thereof, that are in his or her possession immediately upon request. You also agree that you will not, in any manner, use the Confidential Information or any of the Company’s property (i) for your direct or indirect commercial purposes outside these Terms or (ii) against the best interests of Company at any time.
You agree to indemnify and hold harmless Company, its affiliates, and its respective officers, directors, agents, and employees from any and all Indemnified Losses which are incurred, sustained, or suffered because of, arising out of, or as a result of (i) any acts or omissions relating to your marketing or sales of Products and Services; (ii) the acts or omissions of any Sub-Agent, employee, independent contractor, subcontractor, vendor, or anyone directly or indirectly engaged by you in connection with these Terms; or (iii) any breach of your obligations and representations under these Terms. The term “Indemnified Losses” means all liability, claims, demands, obligations, assessments, loss, cost, damages, and expenses, of any nature, contingent or otherwise, including, without limitation, any and all judgments, decrees, equitable relief, extraordinary relief, settlements, awards, attorney’s fees, court costs, punitive damages, and arbitration costs, including arbitrators’ fees. Company shall be entitled to use counsel of its own choosing, shall be entitled to determine the validity of the Indemnified Loss, and shall not be required to notify you of the existence or progress of any claims or Indemnified Loss as a condition precedent to requiring payment by you to the Indemnified Party for an Indemnified Loss. To secure your promise of indemnification, you assign to Company and agrees to execute any additional instruments or documents necessary to perfect a continuing security interest to Company in all commissions or advances otherwise payable to you by Company, to the extent necessary to satisfy Company for any such Indemnified Losses. This assignment is given to Company to secure your obligations as set forth in herein. Company therefore has the right to withhold commissions relating to this indemnity.
- Limitation of Liability
ALL RESOURCES ARE PROVIDED “AS IS.” COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF ANY RESOURCE. TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW, (I) NEITHER COMPANY NOR ITS AFFILIATES WILL HAVE ANY LIABILITY TO YOU WITH RESPECT TO ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER INDIRECT DAMAGES, ARISING OUT OF THESE TERMS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) IN NO EVENT WILL COMPANY’S AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH OR UNDER THESE TERMS (UNDER ANY THEORY OF LIABILITY) EXCEED THE COMPENSATION PAID BY COMPANY TO YOU UNDER THESE TERMS IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM.
- Dispute Resolution. All claims, disputes, and controversies arising out of or in any manner relating to these Terms or any other agreement executed in connection with these Terms, or to the performance, interpretation, application or enforcement hereof, including but not limited to occurrence hereof (in each case, “Dispute”), shall be submitted to binding, non-appealable arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in force at the time the demand is filed, unless the parties mutually agree otherwise. Either party may within sixty (60) days from the date of such unsuccessful mediation or one (1) year from the date of the alleged occurrence resulting in the Dispute, whichever is later, make a demand for arbitration by filing a demand in writing with the other party and serving the same by depositing it in the U.S. Mail, certified mail, return receipt requested. Each of the parties shall choose, within sixty (60) days after demand for arbitration is made, its arbitrator and the two appointed arbitrators shall choose a third arbitrator possessing the same qualifications. All arbitration hearings conducted hereunder, and all judicial proceedings to enforce any of the provisions hereof, shall take place in Dallas County, Texas. The hearing before the arbitrators of the matter to be arbitrated shall be at the time and place within said County as is selected by the arbitrators. The decision of any two arbitrators with respect to a Dispute shall be binding and conclusive and non-appealable and shall be submitted to the court for confirmation with the same effect as a judgment. Each of the parties hereby irrevocably waives punitive, exemplary, consequential, and other non-compensatory damages in connection with any arbitration award with respect to any dispute.
- Applicable Law and Venue. These Terms shall be governed by the laws of the State of Texas. Exclusive venue with respect to all matters hereunder shall be Dallas County, Texas. COMPANY AND YOU HEREBY WAIVE RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THESE TERMS.
- Severability. The invalidity of any one or more of the words, phrases, sentences, clauses, sections or subsections contained in these Terms shall not affect the enforceability of the remaining portions of these Terms or any part hereof.
- Waiver. No waiver of any of the provisions of these Terms shall be deemed or shall constitute a waiver of any other provision hereof, whether or not similar, nor shall any such waiver constitute a continuing waiver unless otherwise expressly so provided.
- Amendment. Company may amend these Terms from time to time. If such amendments are material, Company will provide notice to you of the amendment and effective date. If you disagree with the amendment, you may discontinue your use of the Resources and the sale of the Products and Services. Except as set forth in this paragraph, these Terms constitutes the entire agreement between the parties and supersedes and replaces any and all prior agreements between the parties.