This ETHOS PRODUCER AGREEMENT (this “Agreement”) is made and entered into as of the date on which you confirm your acceptance in accordance with Section 9.10 below (the “Effective Date”), by and between Ethos Technologies Inc., a corporation organized and existing under the laws of Delaware (“Ethos”), and the producer (“you” or “Producer”). Ethos and Producer are sometimes referred to individually as a “Party” and collectively as the “Parties”.
WHEREAS, Ethos is a licensed insurance producer offering the Products (as defined below); and
WHEREAS, Producer is a licensed insurance producer, having significant experience, business relationships, and network contacts, and desires to act as a referral producer to Ethos for the sale of Products (the “Purpose”).
NOW THEREFORE, in consideration of the mutual covenants, agreements, and respective representations and warranties contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1.1 “Confidential Information” means any and all proprietary, confidential and/or non-public information, material, presentations, documents and records disclosed by Ethos to the Producer in relation to the Purpose, which may include without limitation: (a) patent and patent applications; (b) trade secrets; (c) information, ideas, techniques, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to Ethos’ current, future, and proposed products and services; (d) information concerning research, analysis, test results, experimental work, development, design details, specifications, and engineering; (e) financial information, technical data, intellectual property, procurement requirements, purchasing and manufacturing information, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, pricing, commissions, fee structures, and marketing plans; (f) the existence and terms and conditions of this Agreement; and (g) all other information that Producer knew, or reasonably should have known, was the Confidential Information of Ethos. Confidential Information may be communicated to Producer orally, in writing, or in any other recorded or tangible form.
1.2 “Eligible Sold Policy” means a Sales Lead (a) which, at the time Producer (or its licensed Subproducer) identifies such Sales Lead, is not already an existing customer of Ethos or created an account, initiated a quote, applied for a Product, and/or in any way initiated contact directly with Ethos relating to the purchase of Products, (b) which has not previously been referred to Ethos as a Sales Lead by another producer or any other third party, and (c) which applies for and binds a policy for a Product utilizing the Producer’s unique agent link within 60 days of Ethos’ receipt of the referred Sales Lead from Producer.
1.3 “Ethos Materials” means all materials describing Ethos, its services, and/or any Products provided to Producer by Ethos for use under this Agreement.
1.4 "Ethos Personal Data” means all Personal Data related to an identified or identifiable Ethos Products customer or prospective customer (including, without limitation, Sales Leads).
1.5 “Intellectual Property Rights” means all current and future trade secrets, copyrights, patents and other patent rights, trademarks, and any and all other intellectual property or proprietary rights now known or hereafter recognized in any jurisdiction.
1.6 “Personal Data” means any information in any form that constitutes “personal information”, “personally identifiable information”, “personal data”, “nonpublic information” or similar information governed by applicable laws.
1.7 “Producer Personal Data” means all Personal Data related to an identified or identifiable Sales Lead prior to the transmittal or other disclosure of such Personal Data to Ethos.
1.8 “Products” means Ethos’ proprietary and/or third party insurance products as set forth in Exhibit A (Products), which may be amended by Ethos in its sole discretion from time to time.
1.9 “Sales Lead” means a potential or prospective customer for the Products that is identified by Producer arising out of or in connection with this Agreement..
1.10 “Subproducer” means Producer’s network of licensed, independent brokers, agents, subagents, agencies, subagencies, downlines and/or subcontractors who are permitted or authorized to market or sell Products, regardless of whether such parties have a contract in place with Producer.
2.1 “Appointment. Ethos and Producer hereby agree that Producer shall be Ethos’ non-exclusive producer solely for the referral of leads for the sale of Products, as further set forth in this Agreement.
2.2 Scope of Authority.
(a) Permissible Activities. In relation to the Purpose, Producer is solely authorized to (a) recommend, endorse, or promote the Products to the Producer’s customers, (b) make Ethos Materials available to potential customers, (c) inform customers that frequent review of their insurance needs is prudent and important, (d) tell customers that the Producer is working with Ethos to make the Products available to the Producer’s customers, and (e) ask if the customer would like to connect with Ethos or have Ethos contact the customer. The Parties agree that Ethos may solicit the customers that Producer sends or otherwise makes available to Ethos for Products.
(b) Impermissible Activities. Producer shall not: (i) perform any activities on behalf of Ethos not specifically listed in Section 2.2(a) above, (ii) solicit insurance for unauthorized insurers or insurers for whom the Producer is not properly appointed, (iii) solicit any line of insurance for which it is not licensed, (iv) permit any of its employees, affiliates, agents, or Subproducers to solicit any line of insurance for which such party is not licensed, (v) recommend, endorse, or promote life insurance and related products on behalf of any other life insurance provider or producer who primarily sells such products utilizing an online platform; and (vi) direct, induce or attempt to induce any policyowner(s) to surrender, lapse or relinquish their Eligible Sold Policy or any in force policy.
2.3 Referral Process. During the term of this Agreement, Producer shall use commercially reasonable efforts to perform the activities specified in Section 2.2(a) above and as may be further requested by Ethos in writing.
2.4 Referral Fees, Transaction Costs and Reporting. Unless otherwise stated below or separately agreed to in a signed writing by both Parties on or after the Effective Date, Ethos shall pay referral fees on Eligible Sold Policies to Producer pursuant to Exhibit B (“Referral Fees”). Any part of Exhibit B (including the compensation table) may be amended by Ethos in its sole discretion upon written notice to Producer from time to time, including, without limitation, adjustments due to any approved subproducer arrangements involving Producer and the issuance of new Products.
Producer acknowledges and agrees that it is solely responsible for payment of any and all amounts owed to any of its Subproducers (whether licensed or unlicensed), including any portion of its Referral Fees. In the event Ethos agrees, in its sole discretion, to distribute any portion of Producer’s Referral Fees to Producer’s Subproducers on its behalf, any such distributions shall be made solely as an accommodation to Producer, and Producer shall remain subject to all of the requirements in Exhibit B and section 2.6 below.
Any and all payments made by Ethos may be made less any transaction processing costs and fees (e.g., wire costs, Stripe fees, Bill.com fees) which may be deducted (for administrative convenience) from any amounts paid to Producer, understanding and agreeing that Producer is responsible for all such fees.
If requested in writing by Producer, each payment of Referral Fees may be accompanied by a report showing the calculation of the Referral Fees being paid to Producer each month.
2.5 Meetings. Producer agrees to meet with Ethos, either in person or via teleconference, on an as-needed basis to discuss the status of the relationship contemplated herein and emerging opportunities.
2.6 Subcontracting. Producer shall not engage Subproducers to perform any of its obligations under this Agreement without the express prior written approval of Ethos. Producer will be responsible for (i) selection, vetting and management of reputable, licensed Subproducers, (ii) any misrepresentation, negligence, willful misconduct, fraud, or violation of any applicable law, statute, or regulation by its Subproducers, (iii) any and all amounts owed to any of its Subproducers (whether licensed or unlicensed), including any portion of the Referral Fees owed by Producer to such Subproducers, and (iv) any and all amounts owed by its Subproducers to Ethos arising from or related to this Agreement, including but not limited to any charges or debts incurred by such Subproducers in relation to cancellation, rescission, lapse, or other termination of any Eligible Sold Policy.
Producer will provide a list of any prospective Subproducer(s) and their life insurance producer license number(s) (for each state where such Subproducers are licensed) to Ethos for prior written approval before engaging such Subproducer(s) to perform services relating to this Agreement. Producer will ensure that such Subproducers’ are validly licensed and that their activities (and Referral Fees to which they are entitled) are strictly limited to those jurisdictions where such Subproducers are actually licensed. Producer hereby releases, discharges, and agrees to defend, indemnify, and hold Ethos harmless from any and all Claims (as defined below), under any legal theory and howsoever arising, related to (i) any alleged failure by Ethos to pay any amount(s) owed to Producer’s Subproducer(s), (ii) any breach of the terms of this Agreement by Producer’s Subproducers; and (iii) any misrepresentation, negligence, willful misconduct, fraud, or violation of any applicable law, statute or regulation by any of Producer’s Subproducer(s), whether licensed or non-licensed.
Non-licensed Subcontractors. If Producer engages any approved non-licensed Subproducers, Producer will do so in compliance with all applicable laws and will ensure that (i) all consideration paid by Producer to the Subproducers will not exceed $50 per referral (or such maximum consideration permitted under applicable law), and (ii) such consideration is not tied to the issuance of a policy. Producer will be responsible to ensure Subproducers do not have the authority to (u) sell, solicit or negotiate with respect to the Products, or make any commitments, agreements, or incur any liabilities whatsoever on behalf of Ethos or any third party provider of the Products, (v) provide its customers with information regarding specific Product terms and conditions, (w) advise its customers regarding their specific insurance needs, (x) compare Products with other insurance policies, (y) make referrals to any third party providers of the Products (only to Ethos and Producer), and (z) tell customers that Products may be purchased from Ethos at a lower price than other insurance policies. Producer recognizes that any of its non-licensed Subproducers engaging in any of these stated impermissible activities without licensure as an insurance producer may be in violation of the law, and Producer will be fully responsible and liable for any Claims resulting from such impermissible activities.
2.7 Business Practices. During the term of this Agreement, Producer shall promptly inform Ethos of Producer’s recommendation, endorsement, or promotion of any product or service offering by any competitor of Ethos which is similar to any Product. Additionally, Producer (a) shall conduct its business under this Agreement in a manner that reflects favorably upon Ethos, the Products, and the goodwill and reputation of Ethos, (b) shall not engage in illegal, deceptive, misleading, or unethical trade practices, including, without limitation, directing potential customers who are searching for Ethos’s website to Producer’s own website, or implying in any way that Producer is an employee of Ethos, and (c) shall not permit any of its subsidiaries or affiliates, or any of its or their respective directors, officers, managers, employees, Subproducers, representatives, or agents to violate any applicable law, including, without limitation, any and all data privacy and data security laws (e.g., the California Consumer Privacy Act, the Gramm–Leach–Bliley Act (“GLBA”), etc.), anti-corruption and anti-bribery laws (e.g., the Foreign Corrupt Practices Act of 1977), and any laws applicable to communications (e.g., the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act of 2003, etc.), each as may be amended from time-to-time. Producer will timely complete all required continuing education requirements for its licensure, and will participate in and/or complete any additional required annual trainings provided by Ethos.
2.8 Content Marketing. Producer agrees to co-create content marketing for publication to Sales Leads by Producer, subject to written approval by Ethos. Each content piece will contain a follow-link back to the Ethos website.
Licenses and Ownership.
3.1 Representation and Ownership of Marks.
(a) Ethos Marks. Subject to the terms and conditions set forth in the Agreement and solely in furtherance of the Purpose, Ethos grants to Producer a limited, revocable, non-transferable, non-exclusive license, without right of sublicense, to use the Ethos trademarks, service marks, and logos set forth in Exhibit C (Ethos Marks) (the “Ethos Marks”) solely to perform its obligations set forth in Section 2.2(a). The use of all Ethos Marks, including placement and sizing, shall be subject to Ethos’ then-current trademark use guidelines and prior written approval of Ethos. If the Ethos Marks become, or in Ethos’ opinion are likely to become, the subject of an infringement claim, Ethos may at its option modify or replace the Ethos Marks and require Producer to cease use of the allegedly infringing Ethos Marks. Prior to Producer’s use of Ethos Marks, Producer shall promptly provide Ethos with samples of all materials that will use the Ethos Marks for approval pursuant to Ethos’ quality control purposes. If, in Ethos’ discretion, the Producer’s use of the Ethos Marks does not meet Ethos’ then-current trademark usage policy, Ethos may, at its option, require Producer to revise such material and re-submit it for review under this Section 3.1 prior to display, or release of further materials bearing or containing such Ethos Marks. Except for the right to use the Ethos Marks set forth above, nothing contained in this Agreement shall be construed to grant to Producer any right, title or interest in or to the Ethos Marks, and all right, title, and interest in and to the Ethos Marks shall be retained by Ethos. Producer acknowledges that Ethos asserts its exclusive ownership of the Ethos Marks and the renown of the Ethos Marks worldwide. Producer shall not take any action inconsistent with such ownership and further agrees to take, at reasonable expense, any action that Ethos reasonably requests to establish and preserve Ethos’ exclusive rights in and to the Ethos Marks. Producer shall not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Ethos Marks or in such a way as to create combination marks with the Ethos Marks.
(b) Producer Marks. Producer grants Ethos the right to use the Producer’s approved logo for the purpose of Ethos marketing in the following context: Ethos is partnering with Producer to offer Ethos’s Products to consumers. The use of all Producer Marks, including placement and sizing, shall be subject to Producer’s then-current trademark use guidelines. If the Producer Marks become, or in Producer’s opinion are likely to become, the subject of an infringement claim, Producer may at its option modify or replace the Producer Marks and require Ethos to cease use of the allegedly infringing Producer Marks. If requested, Ethos shall promptly provide Producer with samples of all materials that use the Producer Marks for Producer’s quality control purposes. Except for the right to use the Producer Marks set forth above, nothing contained in this Agreement shall be construed to grant to Ethos any right, title or interest in or to the Producer Marks, and all right, title, and interest in and to the Producer Marks shall be retained by Producer. Ethos acknowledges that Producer asserts its exclusive ownership of the Producer Marks and the renown of the Producer Marks worldwide. Ethos shall not take any action inconsistent with such ownership and further agrees to take, at reasonable expense, any action that Producer reasonably requests to establish and preserve its exclusive rights in and to the Producer Marks. Ethos shall not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Producer Marks or in such a way as to create combination marks with the Producer Marks.
3.2 Ethos Materials. Subject to the terms and conditions set forth in the Agreement and solely in furtherance of the Purpose, Ethos grants to Producer a limited, revocable, non- transferable, non-exclusive license, without right of sublicense, to distribute the Ethos Materials exactly as provided to Producer by Ethos to perform Producer’s obligations under this Agreement.
3.3 Ownership. As between Producer and Ethos, Ethos retains all right, title, and interest to (a) the Ethos Marks, (b) the Products, (c) the Ethos Materials, (d) Ethos Personal Data, and (e) all Intellectual Property Rights related to any of the foregoing. There are no implied licenses under this Agreement.
3.4 Publicity Release and Waiver. Producer grants to Ethos and its affiliates a worldwide, royalty-free, non-exclusive, fully paid-up, and sub-licensable right and license to Producer’s name, image, likeness, biographical information, statements, and opinions (collectively, “Publicity Rights”) and to use, distribute, and/or publicly display its Publicity Rights in any way, at any time, in any and all media related to Ethos, for any advertising, promotional, or publicity purpose, without any additional right of approval, and without additional consideration to the Producer. Producer hereby releases, discharges, and agrees to hold harmless Ethos, its affiliates, and their respective insurers and agents, from any and all liabilities, claims, injuries, damages (both direct and indirect), losses, costs and expenses (including, without limitation, attorneys’ fees) arising under or related to the use of the Publicity Rights as described herein, and Producer waives any and all claims relating to the exercise of the Publicity Rights granted in this section. Producer expressly consents to any background check and to allow Ethos to provide personal information about Producer to any third party as necessary related to the performance of any such background check.
Representations and Warranties.
4.1 Representations and Warranties. Each Party represents and warrants to the other Party that (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach (including with the passage of time) of its organizational documents, applicable law, or any other agreement to which it is a party, and (c) this Agreement has been duly executed and delivered by such Party and constitutes the valid and binding agreement of such Party, enforceable against such Party in accordance with its terms.
4.2 Producer Representations, Warranties and Covenants. Producer represents, warrants and covenants that: (i) Producer and its Subproducers have and will maintain during the term of this Agreement all necessary licenses to operate in each applicable jurisdiction, and will provide Ethos at least annually with copies of all of its current licenses or at any time upon request from Ethos; (ii) all activities undertaken by Producer and its Subproducers in furtherance of the Purpose shall be performed in a professional manner, applying not less than the standard of care applicable to similar services within the industry; (iii) Producer and its Subproducers have implemented and will maintain reasonable and appropriate cybersecurity protocols, including technical, administrative and physical safeguards designed to maintain the security, confidentiality, privacy, and integrity of any and all Confidential Information disclosed to Producer by Ethos; (iv) Producer and its Subproducers will not call or text any phone numbers listed on the National Do Not Call Registry, any applicable state Do Not Call Registry, or which are associated with requests not to receive telemarketing calls or texts made by or on behalf of Ethos, (v) Producer and its Subproducers will each maintain and enforce their own internal do not call lists to track all requests not to receive telemarketing calls or texts, and will share all such requests they receive with Ethos by sending an email to email@example.com, and (vi) Producer and its Subproducers shall at all times comply with all applicable laws, rules, regulations and guidelines, including, without limitation, the rules, regulations and policies of each applicable digital and/or social media platform, and all applicable privacy, data security and cybersecurity laws and regulations.
Producer further represents, warrants and covenants that (i) Producer and its Subproducers have (A) the right to provide Ethos the Sales Leads (including, without limitation, such Sales Leads’ Personal Data), and (B) provided all required notices and obtained any necessary consents to permit Ethos to use the Sales Leads (including, without limitation, such Sales Leads’ Personal Data) for any legitimate business purpose; (ii) each communication by Producer and its Subproducers recommending, endorsing and/or promoting the Products (including on digital and/or social media) will (A) comply with all applicable insurance marketing regulations and (B) clearly and conspicuously disclose Producer’s relationship with Ethos as specified in both (1) the Federal Trade Commission (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255, and (2) the FTC Staff guidance (as of the Agreement’s Effective Date) posted at https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking, and (iii) all Sales Leads have supplied “prior express written consent” (or similar term as defined under applicable law) to receive commercial telephone calls, text messages, and SMS messages (including artificial voice calls, pre-recorded calls, as well as auto-dialed calls and texts) from third parties, including Ethos. For purposes of this Agreement, the term “prior express written consent” shall have the same meaning set forth in the Telephone Consumer Protection Act (“TCPA”), with such “prior express written consent” for each Sales Lead hereinafter referred to as a “TCPA Consent”. Producer and its Subproducers shall retain the records of each Sales Lead’s TCPA Consent (“Consent Records”) for a minimum of five (5) years following creation of each Consent Record, and shall provide such Consent Records to Ethos within three (3) business days of Ethos’s request at any time. The Consent Records shall include, at a minimum, the consent language appearing on the online media from which the TCPA Consent was collected/generated, the IP address of the source of the TCPA Consent, and the date and time stamp indicating the time that the TCPA Consent was collected/generated.
4.3 General Disclaimers. PRODUCER ACKNOWLEDGES AND AGREES THAT, IN ENTERING INTO THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES FROM ETHOS, EXPRESS OR IMPLIED, AND THAT ETHOS HAS NOT MADE ANY REPRESENTATIONS, ASSURANCES, OR PROMISES THAT PRODUCER WILL RECEIVE ANY REFERRAL FEES AS A RESULT OF THIS AGREEMENT. ETHOS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, REGARDING ITS WEBSITE, THE PRODUCTS AND THE ETHOS MATERIALS (WHICH ARE PROVIDED AS-IS), WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAWS, INCLUDING WITH RESPECT TO ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT.
4.4 Warranties to Third Parties. Producer shall not provide any representations or warranties to any Sales Lead or any other third party with respect to the Products.
Confidentiality and Personal Data.
5.1 Confidentiality. Producer shall: (i) maintain in strict confidence all Confidential Information disclosed to it; (ii) not disclose to any third party any Confidential Information except as expressly authorized by this Agreement; (iii) use the Confidential Information solely in furtherance of the Purpose and for no other purpose; (iv) limit access to the Confidential Information to only those of its employees, contractors, agents, Subproducers and consultants (collectively, the “Representatives”) who have a need to know and who have been instructed to comply with the confidentiality obligations contained herein; (v) be responsible for any breach of this Section 5 by any of its Representatives; (vi) use at least the same standard of care as it uses to protect its own most confidential information (and in no event less than reasonable care) to ensure that such Representatives do not disclose or make any unauthorized use of such Confidential Information; (vii) promptly notify Ethos upon discovery of any accidental, unauthorized or unlawful destruction, loss, alteration, unavailability, use, acquisition, disclosure of or access to the Confidential Information (a “Security Incident”); and (viii) upon Ethos’ request, return any Confidential Information to Ethos without retaining any copies or other reproductions or extracts thereof, or securely destroy or have destroyed all Confidential Information in a manner consistent with industry best practices, followed by certification in writing by an officer of Producer that such steps have been completed. Notwithstanding any other provision in this Agreement to the contrary, the obligations set forth in this Section 5 shall survive any termination or expiration of this Agreement for a period of three (3) years thereafter.
5.2 Exceptions. The obligations of confidentiality contained in Section 5.1 shall not apply to the extent that it can be established by Producer by competent proof that such Confidential Information:
(a) was already known by Producer, other than under an obligation of confidentiality, at the time of disclosure by Ethos;
(b) was generally available to the public or was otherwise part of the public domain at the time of its disclosure to Producer;
(c) became generally available to the public or otherwise became part of the public domain after its disclosure, other than through any act or omission of Producer or its Representatives in breach of this Agreement; or
(d) was disclosed to Producer, other than under an obligation of confidentiality, by a third party who had no obligation not to disclose such information to others.
5.3 Authorized Disclosure. Notwithstanding any provision to the contrary, Producer may disclose Confidential Information (a) to the extent required by law or any governmental authority, or (b) to its Representatives on a “need to know” basis in furtherance of the Purpose, under an obligation of confidentiality, provided, that Producer shall use commercially reasonable efforts to secure confidential treatment of such information required to be disclosed. Prior to disclosing any Confidential Information under this Section 5.3, Producer shall take reasonable steps to give Ethos sufficient notice of the disclosure request for Ethos to contest the disclosure request.
5.4 Personal Data Rights and Obligations.
(a) Rights to Personal Data. As between the Parties, Producer holds all right, title and interest in Producer Personal Data prior to transmittal or otherwise making available such Producer Personal Data to Ethos. Upon Ethos’s receipt, acquisition of, or other access to Producer Personal Data, such Producer Personal Data also becomes Ethos Personal Data. Ethos holds all right, title and interest in Ethos Personal Data. For clarity, Producer has no ownership interest in Ethos Personal Data.
(b) Usage Restrictions. To the extent Ethos discloses or otherwise makes available Ethos Personal Data to Producer, Producer shall (i) only use Ethos Personal Data for purposes of (A) assessing Ethos’s compliance with its obligations under this Agreement and (B) servicing — in relation to the Products — the respective Sales Lead to whom the Personal Data relates; and (ii) not sell, share, transmit or otherwise disclose Ethos Personal Data to third parties without Ethos’s prior written consent. At the Agreement’s termination or upon Ethos’s written request, Producer shall promptly delete or cause the deletion of all Ethos Personal Data in Producer’s care, custody or control except to the extent retention thereof is required by applicable law. To the extent that Producer continues to possess, use, store, retain or otherwise process Ethos Personal Data subsequent to the Agreement’s termination, Producer shall continue to abide by its obligations under this Section 5.4 (Personal Data Rights and Obligations).
(c) Security Obligations. Producer shall implement and maintain reasonable and appropriate technical, administrative and physical safeguards to protect Ethos Personal Data in Producer’s care, custody or control (“Security Measures”). Such Security Measures shall (i) be as protective as the measures Producer applies to its own similar information; and (ii) comply with applicable laws (including, without limitation, the GLBA). To the extent Producer discloses or otherwise makes available Ethos Personal Data to its Representatives in accordance with Section 5.4(b) above, Producer shall enter into a written contract with each such Representative containing privacy, confidentiality and data security obligations at least equivalent in substance to those in this Agreement. Any Ethos Personal Data in a Producer Subproducer’s or Representative’s care, custody or control is deemed to place such information in Producer’s care, custody or control. Producer shall not, whether directly or indirectly (e.g., through its Representatives or its Subproducers), store, collect, generate, access, use or otherwise process Ethos Personal Data from or in locations outside the United States without Ethos’s prior written consent.
In the event of a Security Incident involving Ethos Personal Data in Producer’s care, custody or control, Producer shall at its sole cost and expense: (i) provide full details of such Security Incident to Ethos as soon as possible thereafter, but in any event within two (2) days of first discovering such Security Incident; (ii) cooperate with Ethos in every reasonable way to investigate the Security Incident; (iii) terminate any unauthorized access to affected Ethos Personal Data; (iv) perform all necessary remediation to fully address the Security Incident and prevent reoccurrence thereof, including development of a plan of remediation that is subject to Ethos’s reasonable input; (v) provide reasonable assistance to Ethos to regain possession of the affected Ethos Personal Data; and (vi) cooperate with Ethos in the conduct of any investigation of, or litigation involving, third parties related to the Security Incident.
Additionally, without limiting any other rights or remedies that may be available to Ethos, in the event of a Security Incident involving Ethos Personal Data in Producer’s care, custody or control, Producer shall be responsible for (i) providing notice, in a manner and format reasonably determined by Ethos, to individuals whose Personal Data was affected by the Security Incident as well as to any other third parties (such as regulators) that Ethos reasonably determines should be notified of the Security Incident; (ii) providing any other relief service(s) as required by applicable law to the affected individuals, (iii) reimbursing Ethos for any Costs (as defined below) associated with the Security Incident.
Indemnities and Insurance.
6.1 By Producer. Producer shall indemnify, defend, and hold Ethos harmless from and against any and all liabilities, losses, damages, fines, costs, fees, and expenses (including reasonable attorneys’ fees) (collectively, “Costs”) resulting from, related to, or arising out of any claims, demands, causes of action, suits, or proceedings, including, without limitation, any government action brought by any federal or state regulatory agency (including any state department of insurance) (collectively, “Claims”) based on allegations that Producer, whether itself or through its Representatives, (a) breached any term of this Agreement, including, without limitation, any scope of authority, representation, warranty, or covenant contained herein, (b) violated any applicable law, statute, or regulation, and/or (c) made a representation or warranty regarding Ethos or the Products that is inconsistent with the Ethos Materials provided to Producer by Ethos, or is otherwise unauthorized by Ethos.
6.2 Indemnification Procedure. Producer shall be liable for any Costs incurred by Ethos which are attributable to any such Claims, and Ethos will (i) notify Producer promptly in writing of the claim, with the understanding and agreement that no failure by Ethos to provide timely notice shall permit Producer to avoid its indemnity obligation hereunder, and (ii) provide reasonable assistance at Producer’s written request and at Producer’s expense to enable Producer to defend, compromise, or settle such claim. Producer shall diligently pursue any defense required to be rendered hereunder, shall keep Ethos informed of all significant developments in any action defended, and shall not enter into any settlement affecting Ethos without the prior written consent of Ethos.
6.3 Insurance. Producer shall obtain and maintain insurance for itself and its officers, directors, employees, agents, Subproducers and contractors for the conduct of its business, including, without limitation, Errors and Omissions Insurance, for any loss arising as a result of any real or alleged negligence, errors, omissions or malpractice arising from the services provided to Ethos with limits of not less than $1,000,000 or such greater amount as may be required by applicable law, and Producer agrees to deliver current Certificates of Insurance to Ethos within ten (10) business days of the expiration or replacement of any coverage, and/or at any time upon request from Ethos.
Limitation of Liability.
7.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL ETHOS, ITS AFFILIATES, SUCCESSORS, ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR INSURERS BE LIABLE TO PRODUCER UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL ETHOS’S TOTAL LIABILITY ARISING OUT OF ANY CLAIMS UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF PAYMENTS ACTUALLY PAID TO PRODUCER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
8.1 Term. The term of this Agreement shall be one (1) year from the Effective Date unless terminated earlier in accordance with the provisions of this Section 8. This Agreement shall renew automatically for additional one-year terms unless one Party provides the other written notice no later than thirty (30) days prior to the expiration of the then-current term of the Agreement of its intention to allow the Agreement to expire at the end of such term.
8.2 Termination for Breach. Either Party may terminate this Agreement for cause resulting from the breach of this Agreement by the other Party by providing the breaching party written notice of such breach and the intention to terminate for cause. The Party receiving such notice shall have thirty (30) days to cure such breach. If at the end of such thirty (30) day period, the breach has not been cured to the reasonable satisfaction of the Party seeking to terminate the Agreement, the Agreement shall terminate.
8.3 Termination for Convenience. Notwithstanding anything herein to the contrary, Ethos may terminate this Agreement for convenience at any time upon three (3) days’ written notice.
8.4 Termination for Bankruptcy. This Agreement shall be automatically terminated without the need for action by any Party if a Party becomes insolvent, makes any assignment for the benefit of creditors, goes into liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code, or any similar statute.
8.5 Effect of Termination; Duties of the Parties Upon Termination. Upon any termination or expiration of this Agreement, Producer shall (a) cease any further sales or listings of the Products, (b) refrain thereafter from representing itself as a Producer of Ethos, (c) immediately cease all use of any Ethos Marks, and (d) return to Ethos the Ethos Materials and all tangible items in Producer’s possession or under its control containing Confidential Information of Ethos. Upon any termination or expiration of this Agreement, all licenses granted under this Agreement, shall terminate. The expiration or termination of this Agreement for any reason, except in accordance with Section 8.2 for a breach by Producer and/or due to any allegation of Producer’s violation of any applicable law or regulation, shall not relieve Ethos of its obligation to pay Producer any Referral Fees that are payable hereunder with respect to Sales Leads that have been accepted by Ethos prior to such expiration or termination of this Agreement. In the event that Ethos terminates this Agreement in accordance with Section 8.2 due to a breach by Producer, Ethos’ sole and exclusive obligation to Producer shall be to pay Producer the Referral Fees that have accrued up to the date of such breach.
8.6 Survival. The following provisions shall survive any expiration or termination of this Agreement: Sections 1 (Definitions), 3.3 (Ownership), 4.2 (Producer Representations, Warranties and Covenants), 4.3 (General Disclaimers), 5 (Confidentiality and Personal Data), 6 (Indemnities and Insurance), 7 (Limitation of Liability), 8.3 (Termination for Convenience), 8.5 (Effect of Termination; Duties of the Parties Upon Termination), 8.6 (Survival), and 9 (Miscellaneous).
9.1 Relationship of the Parties. The relationship of Producer and Ethos is that of independent contractors. Regardless of the use of the word “Producer” in the title of this Agreement, neither Party is, nor shall be deemed to be, a partner, joint venturer, agent, or legal representative of the other Party for any purpose. Neither Party shall be entitled to enter into any contracts in the name of or on behalf of the other Party, and neither Party shall be entitled to pledge the credit of the other Party in any way or hold itself out as having authority to do so. No Party shall incur any debts or make any commitments for the other, except to the extent, if at all, specifically provided herein.
9.2 Assignment. Producer shall not assign or transfer this Agreement, in whole or in part, whether by merger, operation of law or otherwise, or delegate any of its obligations hereunder, without the express written consent of Ethos. Subject to the foregoing, this Agreement shall be binding upon the successors and permitted assigns of the Parties. Any assignment in violation of the foregoing shall constitute a material breach of this Agreement and shall be null and void.
9.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to any conflicts of law principles which would lead to the application of the law of any other jurisdiction.
9.4 Arbitration. In the event any dispute, controversy or claim of any kind arising under, in connection with, or relating to this Agreement (hereinafter “Dispute”) cannot be resolved through direct negotiations, such Dispute shall be resolved exclusively by final and binding arbitration. Such arbitration shall be conducted in Austin, TX and administered by the American Arbitration Association ("AAA") using its Commercial Arbitration Rules.
If the claim under the Dispute is one million U.S. Dollars or less, then the arbitration shall be conducted by a sole arbitrator. If the claim under the Dispute is over one million U.S. Dollars, then the arbitration shall be conducted by three arbitrators. The procedure for selection of a sole arbitrator shall be in accordance with the Commercial Arbitration Rules. If three arbitrators are required, each party shall appoint one arbitrator within twenty (20) days of receipt by respondent of a copy of the demand for arbitration. The two party-appointed arbitrators shall then agree on a third arbitrator within ten (10) days of the appointment of the second arbitrator.
The costs of the arbitration (including fees to the AAA and for the arbitrator(s)) shall be shared equally by the parties, subject to apportionment or shifting in the arbitration award. In addition, the prevailing party in arbitration shall be entitled to reimbursement by the other party for its reasonable attorney's fees incurred.
The award rendered by the arbitrator(s) shall be final and binding on the Parties and may be entered and enforced in any court of competent jurisdiction. Judgment on the award shall be final and non-appealable. .
This arbitration provision shall not limit or affect the right of either Party to seek from any court having proper jurisdiction any injunctive or other equitable relief to prevent breaches of this Agreement for which money damages would not be a sufficient remedy or irreparable harm may result. The party seeking such injunctive or other equitable relief shall not be required to secure or post any bond or surety in connection with such relief.
9.5 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by email (with such notice attached as a PDF), or sent by express courier service, to the Parties at the addresses set forth below (or at such other address for a Party as shall be specified by like notice; provided, that notices of a change or address shall be effective only upon receipt thereof):
If to Producer:
- At the name and contact information listed in your application submitted to Ethos or any other time thereafter, which will be used until such time as you inform Ethos in writing of your intent to change such contact information.
If to Ethos:
Ethos Technologies Inc. Attn: Producers Operations 5001 Plaza on the Lake, Suite 305 Austin, TX 77055 Email: AgentOps@getethos.com
With cc to: Ethos Technologies Inc. Attn: General Counsel 5001 Plaza on the Lake, Suite 305 Austin, TX 77055 Email: Legal@getethos.com
9.6 Amendment. Except as stated in Section 2.4 above, no amendment, modification, or supplement of any provision of the Agreement shall be valid or effective unless made in writing and signed by a duly authorized officer of each Party (including by use of any digital signature or clickthrough agreement presented by Ethos and accepted by Producer).
9.7 Waiver. No provision of the Agreement unless such provision otherwise provides shall be waived by any act, omission, or knowledge of a Party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party.
9.8 Severability. Whenever possible, each provision of the Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of the Agreement.
9.9 Construction. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. As used in this Agreement, the singular shall include the plural and vice versa, and the terms “include” and “including” shall be deemed to be immediately followed by the phrase “without limitation.” The captions and headings in this Agreement are inserted for convenience and reference only and in no way define or limit the scope or content of this Agreement and shall not affect the interpretation of its provisions.
9.10 Acceptance. By (1) checking or clicking a box or other entry on any Ethos website, modal, or portal indicating agreement with or acceptance of this Agreement, (2) executing any Ethos document, agreement or form referencing adoption or incorporation of this Agreement, and/or (3) submitting a Sales Lead to Ethos, you accept and agree to the terms of this Agreement, including the terms and conditions of Exhibit D (Vector One Debit-Check Agent/Agency Authorization Form). You further understand and agree that by accepting and agreeing to this Agreement, your electronic signature and electronic initials shall be applied to Exhibit D. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to this Agreement, in which case the term “Producer” shall refer to such entity and its affiliates. This Agreement may be executed electronically and/or in multiple counterparts (via facsimile, clickthrough, checkbox, e-mail or other electronic transmission method, understanding and agreeing that the Parties agree to the use of any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, or other applicable law), each of which shall be deemed an original and all of which together shall constitute one and the same instrument duly and validly delivered and be valid and effective for all purposes.
9.11 Entire Agreement. The Agreement, including all of the attached Exhibits, constitutes and contains the complete, final and exclusive understanding and agreement of the Parties and cancels and supersedes any and all prior negotiations, correspondence, understandings, and agreements, whether oral or written, between the Parties respecting the subject matter thereof.
In the event Producer enters into a subproducer role with one of Ethos’ existing producers (hereinafter referred to as a “Parent Entity”) or is currently in a subproducer role with a Parent Entity, this Agreement shall immediately terminate and the terms of the agreement between Ethos and Parent Entity for whom Producer has entered into, or is currently in, a subproducer role shall govern and control. Additionally, Producer must send written notice of such change to Ethos via email at firstname.lastname@example.org within three (3) days of entering into such subproducer role with Parent Entity.
- Ethos-marketed life insurance and related products as listed on Ethos’ website at www.Ethoslife.com, except as may be further limited in any subsequent written agreement between the Parties or as Producer may be advised at any time in writing by Ethos.
[Intentionally left blank – The Parties agree this Exhibit will be included at a later date.]