TERMS AND CONDITIONS
These Terms and Conditions for Ethos Producer Agreements (formerly, “Terms and Conditions for Strategic Partnership”) form part of the EPA (formerly, “SPA”) between Ethos Technologies Inc. and Producer (formerly, “Strategic Partner”) to reflect the terms and conditions of the Parties’ strategic producer arrangement, as of the date on which Producer’s acceptance is provided in accordance with Section 9.10 below.
WHEREAS, Ethos is a licensed insurance producer offering the Products (as defined below);
WHEREAS, Producer is a licensed insurance producer, having significant experience, business relationships, and network contacts, and Producer desires to act as a referral Producer to Ethos for the Products (the “Purpose”);
WHEREAS, Ethos and Producer have entered into an EPA in relation to the Purpose; and
WHEREAS, the Parties now desire to incorporate these Terms and Conditions for Ethos Producer Agreements (these “Terms and Conditions”) into the EPA or SPA between Ethos and Producer, which shall hereinafter collectively be referred to as the “Agreement”.
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, data, intellectual property, procurement requirements, purchasing and manufacturing information, customer lists and customer data, 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 the Agreement, and (g) any personally identifiable information (PII) related to any customer and/or Sales Lead, howsoever collected, acquired, and/or disclosed by Ethos (collectively, “Customer PII”); and (h) 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 “Ethos Materials” means all materials describing Ethos, its services, and/or any Products provided to Producer by Ethos for use under the Agreement
1.3 “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.
1.4 “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.
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 the Agreement.
2.2 Scope of Authority.
(a) Permissible Activities. Producer’s sole authority shall be 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, (e) ask if the customer would like to connect with Ethos or have Ethos contact the customer, (f) provide customer lists to Ethos; and (g) present Ethos offerings and Products during any applicable open enrollment periods for Producer’s corporate customers. The Parties agree that Ethos may directly solicit from the customer list(s) that Producer sends 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 subcontractors to solicit any line of insurance for which such party is not licensed, (v) directly compare Ethos Products with other competitive product offerings, (vi) recommend, endorse, or promote life insurance and related products on behalf of any other life insurance provider or producer who sells such products utilizing an online platform; and (vii) 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 the 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. Subject to the terms of the Agreement, Ethos shall pay to Producer the applicable referral fees specified in the EPA (the “Referral Fees”). Each payment of Referral Fees may be accompanied by a report, in reasonable detail, showing the calculation of the Referral Fees being paid with such report, if so requested in writing by Producer.
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 subcontract any of its obligations under the Agreement, without the express prior written approval of Ethos. Producer will be responsible for (i) selection, vetting and management of reputable subcontractors, and (ii) any misrepresentation, negligence, willful misconduct, fraud, or violation of any applicable law, statute, or regulation by any such subcontractor. Producer will provide a list of any prospective subcontractor(s) to Ethos for prior written approval before engaging such subcontractor(s) to perform services relating to the Agreement. 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 subcontractor(s), (ii) any breach of the terms of the Agreement by Producer’s subcontractors; and (iii) any misrepresentation, negligence, willful misconduct, fraud, or violation of any applicable law, statute or regulation by any of Producer’s subcontractor(s), whether licensed or non-licensed.
(a) Licensed Subcontractors. Producer will provide subcontractor’s life insurance producer license number(s) (for each state where such subcontractor is licensed) to Ethos before engaging such subcontractor(s) and ensure that such subcontractors activities (and Referral Fees to which it is entitled) are strictly limited to those jurisdictions where such subcontractor is actually licensed.
(b) Non-licensed Subcontractors. If Producer engages any approved non-licensed subcontractor, Producer will do so in compliance with all applicable laws and will ensure that (i) all consideration paid by Producer to the subcontractor will not exceed $50 per referral (or such maximum consideration permitted under applicable law), and (ii) that such consideration is not tied to the issuance of a policy. Producer will be responsible to ensure subcontractor does 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 subcontractors engaging in any of these stated impermissible activities without licensure as an insurance producer may be illegal, and Producer will be fully responsible and liable for any Claims resulting from such impermissible activities.
2.7 Business Practices. During the term of the Agreement, Producer shall promptly inform Ethos of Producer’s recommendation, endorsement, or promotion of any product or service offering similar to any Product and/or offered by any competitor of Ethos. Producer (a) shall conduct its business under the 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, and (c) shall not, and shall not permit any of its subsidiaries or affiliates, or any of its or their respective directors, officers, managers, employees, independent contractors, 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 and the Gramm–Leach–Bliley Act), 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 and the CAN-SPAM Act of 2003), 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 of 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 B (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 the 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’ 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. 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 the 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 the 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, and (d) all Intellectual Property Rights related to any of the foregoing. There are no implied licenses under the 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 the Agreement and to perform its obligations hereunder, (b) the execution of the 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) the 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 subcontractors have and will maintain during the term of the 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 Producerand its subcontractors 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 subcontractors have implemented and will maintain reasonable and appropriate cybersecurity protocols, including technical, administrative and physical safeguards designed to ensure the security, confidentiality, privacy, and integrity of any and all Confidential Information disclosed to Producer by Ethos; and (iv) Producer and its subcontractors 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 subcontractors have the right to provide Ethos the Sales Leads and customer data, and have obtained all customer consents and provided all required notices necessary to permit Ethos to use the Sales Leads and customer data for any legitimate business purpose; (ii) each communication by Producer and its subcontractors recommending, endorsing and/or promoting the Products (including on digital and/or social media) will comply with all applicable insurance marketing regulations and will clearly and conspicuously disclose Producer’s relationship with Ethos as outlined in the Federal Trade Commission (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255, and related FTC Staff guidance 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” to receive third-party commercial telephone calls (including artificial voice calls, pre-recorded calls and/or auto-dialed calls) from third parties, including Ethos. For purposes of the Agreement, the term “prior express written consent” shall have the same meaning set forth under 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 subcontractors 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 request at any time. The Consent Records shall include, at a minimum, the consent language appearing on 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.
General Disclaimers. PRODUCER ACKNOWLEDGES AND AGREES THAT, IN ENTERING INTO THE AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IT HAS NOT RELIED UPON ANY 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 THE AGREEMENT. ETHOS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, REGARDING 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.
4.3 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.
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 the 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, subcontractors 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 unauthorized access to, or use or disclosure of, 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 the Agreement to the contrary, the obligations set forth in this Section 5 shall survive any termination or expiration of the 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 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 Customer PII. As between the Parties, Ethos holds all right, title and interest in and to Customer PII, none of which is transferred to Producer under the Agreement. Producer shall not, whether directly or indirectly (e.g., through its Representatives), process, store, collect, generate, access or otherwise use Customer PII from or in locations outside the United States, unless expressly authorized to do so in a writing signed by an authorized representative of Ethos in connection with the Agreement. In the event of a Security Incident involving Customer PII, 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 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 Customer PII; (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’ reasonable input; (v) provide reasonable assistance to Ethos to regain possession of the affected Customer PII; 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, Producer shall be responsible, and shall reimburse Ethos, for any Costs (as defined below) associated with any Security Incident to the extent (i) arising from or within Producer's or its Representatives’ facilities, systems, property or personnel, (ii) caused by Producer’s breach of any of the terms of the Agreement, or (iii) due to Producer’s or its Representatives’ negligence.
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 the 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 Producer shall obtain and maintain insurance for itself and its officers, directors, employees, agents, subcontractors and contractors for the conduct of its business, including Professional Liability 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, 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 THE 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 THE AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT SHALL ETHOS’S TOTAL LIABILITY ARISING OUT OF ANY CLAIMS UNDER THE AGREEMENT EXCEED THE TOTAL AMOUNT OF PAYMENTS ACTUALLY PAID TO PRODUCER UNDER THE AGREEMENT IN THE TWELVE (12) MONTH 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 the Agreement shall be one (1) year from the Effective Date unless terminated earlier in accordance with the provisions of this Section 8. The 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 the Agreement for cause resulting from the breach of the 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 the Agreement for convenience at any time upon three (3) days’ written notice.
8.4 Termination for Bankruptcy. The 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 the Agreement, Producer shall (a) refrain thereafter from representing itself as a Producer of Ethos, (b) immediately cease all use of any Ethos Marks, and (c) 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 the Agreement, all licenses granted under the Agreement, shall terminate. The expiration or termination of the 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 the Referral Fees that are payable hereunder with respect to Sales Lead Forms that have been accepted by Ethos prior to such expiration or termination of the Agreement. In the event that Ethos terminates the 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 the Agreement: Sections 1 (Definitions), 3.3 (Ownership), 4.2 (Producer Representations), 4.3 (General Disclaimers), 5 (Confidentiality), 6 (Indemnities), 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 the Agreement, neither Party is, nor shall be deemed to be, a Producer, 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 the 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, the 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 the Agreement and shall be null and void.
9.3 Governing Law. The 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 the 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 the 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 78746
With cc to:
Ethos Technologies Inc.
Attn: General Counsel
5001 Plaza on the Lake, Suite 305
Austin, TX 78746
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, the 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 the Agreement. As used in the 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 the Agreement are inserted for convenience and reference only and in no way define or limit the scope or content of the Agreement and shall not affect the interpretation of its provisions.
9.10 Acceptance. By (1) signing the EPA indicating acceptance of the Agreement, (2) executing any Ethos document, agreement or form referencing incorporation or adoption of the Agreement or these Terms and Conditions (or the former “Terms and Conditions for Strategic Partnership”), including an Insertion Order, (3) clicking any button on the Ethos website accepting, incorporating or referencing the Agreement or these Terms and Conditions (or the former “Terms and Conditions for Strategic Partnership”), and/or (4) submitting a Sales Lead to Ethos, Producer accepts and agrees to the terms of the Agreement. The Agreement may be executed digitally and/or in multiple counterparts (via facsimile, clickthrough, e-mail or other 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 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 subcontractor role with one of Ethos’ existing producers (hereinafter referred to as a “Parent Entity”) or is currently in a subcontractor role with a Parent Entity, the 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 subcontractor role shall govern and control. Additionally, Producer must send written notice of such change to Ethos via email at email@example.com within three (3) days of entering into such subcontracting 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.