LMB INSURANCE SERVICES, INC.
MARKETING AND SERVICES AGREEMENT
WHEREAS, PolicyPilot is in the business of providing advertising, marketing and other services to various Clients, including insurance originators; and,
WHEREAS, Client offers services to consumers that will be marketed on PolicyPilot’s Website pursuant to the terms and conditions of this Agreement. As used herein, (i) “Website” means a World Wide Web site on the Internet; and (ii) “PolicyPilot’s Website” means the Website operated by PolicyPilot at www.policypilot.com and any other Websites operated by or affiliated with PolicyPilot that contain some or all of the functionality or services provided by PolicyPilot.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements made and contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions. When used herein, whether in the singular or in the plural, the following terms shall have the following meanings:
(a) “Insurance Information Inquiry” shall mean an Inquiry in which the PolicyPilot Consumer has either (i) submitted his or her name, address and vehicle information and has expressly authorized PolicyPilot to use this personal information to match the Consumer with applicable service providers, or (ii) has come to the PolicyPilot Website through a specific marketing source that PolicyPilot deems to be of high quality.
(b) “Applicable Laws” shall mean all federal, state and local laws, regulations and ordinances that apply to Client’s marketing, sales or insurance transactions initiated as a result of Client’s contact with an PolicyPilot consumer under this Agreement and the performance of a party’s obligations under this Agreement, including, without limitation, all state and federal privacy laws and regulations, including but not limited to, the Gramm-Leach-Bliley Act (“GLB”) (15 U.S.C. § 6801 et seq.), state insurance broker, insurance provider laws and regulations, and all laws, regulations and ordinances related to insurance services.
(c) “Client” shall mean Client and other organizations which are or hereafter become subsidiaries of, or otherwise Controlled by Client, and any other organization which may hereafter acquire a Controlling interest in Client or any of its subsidiaries, provided Client has given PolicyPilot written or electronic notice of the organizations which are or become subsidiaries of, or are otherwise Controlled by Client, or which acquires a Controlling interest in Client or any of its subsidiaries.
(c) “Control” (and “Controlled” and “Controlling”) shall mean ownership of at least fifty percent (50%) of voting or equity interest in an organization.
(d) “Effective Date” shall mean the first date Client uses the Services.
(e) “Insertion Order” means an agreement entered into by and between the Parties, each of which is incorporated herein by reference which sets forth the specific business terms applicable to an advertising campaign or activity under this Agreement. An Insertion Order may be an electronic or paper form identifying itself as an Insertion Order.
(f) “PolicyPilot Consumer” shall mean any individual who submits information to PolicyPilot, directly or indirectly, whether through the use of PolicyPilot’s Website, telephone or other means whose information is passed to Client through any means.
(g) “Product Specifications” shall mean the specifications for the types of insurance products that Client will offer to PolicyPilot Consumers, as mutually agreed upon by both PolicyPilot and Client and/or Client Agents.
(h) “Services Fee” shall mean the fee payable by Client to PolicyPilot for each service provided to Client as set forth in this Agreement or in the lead management system, as compensation for PolicyPilot’s Services under this Agreement.
(i) “States” shall mean those states identified by Client as to which Client will provide its insurance services to PolicyPilot Consumers who reside in the state or who seek insurance for a vehicle located in that state.
(j) “Warm Transfer Inquiries” shall mean an inquiry generated from a PolicyPilot Consumer that PolicyPilot transfers to a Client or Client Agent via a phone call transfer, pursuant to the terms of an applicable Insertion Order or as otherwise executed by the parties in writing.
2. Services. Subject to the terms and conditions herein, Client engages PolicyPilot for the purpose of providing advertising, marketing and other services.
3. Fees. Client agrees to pay the Services Fees as stipulated in this Agreement or in the lead management system (“Fees”) in U.S. dollars at the address of PolicyPilot stated herein. Service Fees in the lead management system shall go into effect immediately and shall be payable no more than thirty (30) days after Information Inquiries have been delivered to Client. Client may return Insurance Information Inquiries no later than ten (10) days after PolicyPilot’s delivery of the Information Inquiry to Client (“Return Period”). Information Inquiries that are not returned within the Return Period will be invoiced in accordance with Section 8 (Billing; Payment). For the avoidance of doubt, all returns of Insurance Information Inquiries shall be subject to PolicyPilot’s approval.
5. Trademark License. Subject to the terms and conditions of this Agreement, Client hereby grants to PolicyPilot a royalty-free, non-exclusive, non-transferable, non-sublicenseable license during the Term to use Client’s trademarks and logo to perform its activities and obligations contemplated by this Agreement, including for the purpose of identifying Client as a provider on the PolicyPilot network.
6. Solicitations. Client acknowledges that PolicyPilot operates a non-exclusive, multi-vendor service that offers products and services that may compete with Client’s products and services. Client understands that a PolicyPilot Consumer may seek out PolicyPilot’s services on his or her own (e.g., by returning to the PolicyPilot’s Website). In addition, from time to time, PolicyPilot may send email, broadcast messages or other (e.g. telephone) communications to PolicyPilot Consumers who (i) opt to receive certain types of communications on PolicyPilot’s Website, or (ii) are solicited by third parties, whether acting on behalf of PolicyPilot or not, and without knowledge of Client’s relationship to such PolicyPilot Consumer.
7. Confidentiality. For purposes of the Agreement, “Confidential Information” means all information, in oral, written, machine readable, sample or any other form, relating to the business of a party or its affiliates, subsidiaries, consultants or other agents, including, without limitation, information related to pricing, products, services, proprietary business practices, policies, finances, procedures, sales, costs, liabilities, markets, strategies, concepts, and methods, that is not generally ascertainable from public or published information or sources. “Confidential Information” shall not include information that (a) is already known to the receiving party prior to its disclosure by the disclosing party; (b) is in or has entered the public domain through no breach of the Agreement or other wrongful act of any person or entity; (c) has been rightfully received from a third party without confidential or proprietary restriction and without breach of the Agreement; or (d) has been approved for release by prior written authorization of the disclosing party. In connection with the Agreement, each party and its employees and agents may have access to the Confidential Information of the other party. Each party shall, and shall ensure that its employees and agents shall, keep the Confidential Information of the other party in strict confidence and not directly or indirectly disclose, publish, disseminate, make available, discuss or otherwise communicate in any way, to any person, firm, association, partnership, corporation or other entity, any Confidential Information of the other party, without that party’s prior written consent. Each party shall only make the Confidential Information of the other party available to those employees and agents who have a reasonable need for such Confidential Information in connection with the performance of the Agreement. In the event that a party is required by a binding order of a governmental agency or court of competent jurisdiction to disclose any Confidential Information of the other party, it shall provide the other party with prompt written notice sufficient to allow that party an opportunity to appear and object to such disclosure. If such objection is unsuccessful, then the party shall produce only such Confidential Information as is required by the court order or governmental action. All Confidential Information provided and/or disclosed by the parties or which shall at any time come into the possession of the other party, shall be the sole and exclusive property of the disclosing party. Upon the termination or expiration of the Agreement, all Confidential Information (together with all copies thereof) shall promptly be destroyed upon request, with written certification of such destruction.
8. Material Improvements. In the event that applications of PolicyPilot Confidential Information as part of the Service (including but not limited to use of internal processes, know-how, strategies and procedures) yield shared Confidential Information, in the form of material service or strategy improvements, Client agrees to maintain the confidentiality of all such operational or process developments derived from the program for at least ninety (90) days from data acquisition, and shall not utilize or redistribute such developments to third party services providers during that restricted period.
9. Billing; Payment. PolicyPilot will automatically charge Client for all Service Fees and/or Campaign Actions generated in the preceding month. Payment will be due monthly. Payment shall be considered late if not received by PolicyPilot by or before the monthly due date. Late payments by Client will be subject to late fees at the rate of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. In addition, Client agrees to pay all attorneys’ fees and/or collection costs incurred by PolicyPilot in collecting any past due amounts from Client. Client’s failure to make payment to PolicyPilot pursuant to the Payment Terms set forth in the lead management system shall be construed as a material breach of this Agreement. Payment obligations are non-cancelable and non-refundable. In the event Client has a good faith dispute with any portion of an invoice, Client shall promptly advise PolicyPilot in writing of the basis for that good faith belief (but no later than fifteen (15) days after date of invoice), pay the non-disputed portion in full, and cooperate with PolicyPilot in good faith to resolve any issues relating to the remaining invoice amount. If the parties agree that there was an invoicing error that resulted in an overreporting of Fees, PolicyPilot shall issue Client a credit on the following invoice as Client’s sole remedy for the invoicing dispute. Client agrees that it may not seek a chargeback and PolicyPilot will not provide any refunds of Service Fees.
10. Good Standing and Permits. PolicyPilot represents and warrants that it is in good standing in the state of its organization. Client represents and warrants that it is in good standing in the state of its organization, is qualified to do business in each state in which it proposes to provide products and services, and has all licenses and permits necessary or required to provide such products and services. Any fees for licenses and permits required by law or regulation that may be necessary for Client’s performance hereunder shall be the responsibility of Client.
11. Compliance with Laws. Client shall comply with all Applicable Laws. Client shall implement such physical and other security measures as shall be necessary to (i) ensure the security and confidentiality of the “nonpublic personal information” of the “customers” and “consumers” (as those terms are defined by GLB) of PolicyPilot which Client holds, (ii) protect against any unauthorized access to or use of such nonpublic personal information, and (iii) protect against unauthorized access of or use of such nonpublic personal information. Upon request, Client will provide evidence reasonably satisfactory to allow PolicyPilot to confirm that Client has satisfied its obligations as required under this Section. Without limitation, this may include PolicyPilot’s review of audits, summaries of test results, and other equivalent evaluations of Client. Once per calendar year PolicyPilot shall have the right to conduct an on-premises audit and/or a written self-assessment audit of Client’s business practices, Client’s use of Insurance Information Inquiries including, but not limited to, Client’s use of PolicyPilot Consumer information, and Client’s security measures including, but not limited to, data and physical security measures on ten (10) days’ advance written notice. Client shall reasonably cooperate with PolicyPilot with respect to any such audits. PolicyPilot shall conduct any such on-premises audit during regular business hours at Client’s facilities and, to the extent feasible, in a manner that does not unreasonably interfere with Client’s business activities. If any PolicyPilot-initiated audits reveal inadequate security measures as determined by PolicyPilot in its sole discretion, PolicyPilot may, upon ten (10) days written notice to Client, terminate this Agreement and retain all fees paid by Client hereunder. Client agrees to notify PolicyPilot immediately upon Client’s knowledge or belief of any breach in the security or confidentiality of the “nonpublic personal information” of the “customers” and “consumers” (as those terms are defined by GLB) of PolicyPilot which Client holds. In the event of any such breach, PolicyPilot shall have the right to conduct an on-premises audit at Client’s expense within 3 months of said breach.
13. Disclaimer of Warranties; Limitations on Liability. EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. IN NO EVENT SHALL POLICYPILOT’S LIABILITY HEREUNDER EXCEED THE FEES PAYABLE DURING THE INITIAL TERM OF THIS AGREEMENT.
14. Independent Contractors. The parties to the Agreement are independent contractors, and no agency, partnership, joint venture or employer-employee relationship is intended or created by the Agreement. No party shall have the power to obligate or bind any other party. Personnel supplied by the parties shall work exclusively for those companies and shall not, for any purpose, be considered employees or agents of the other party. The parties assume full responsibility for the acts of their personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
15. Assignment. All rights and obligations hereunder are personal as to the parties hereto and shall not be assigned or subcontracted in whole or in part by either of the parties to any person or entity without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign the Agreement to any acquirer of all or of substantially all of such party’s equity securities, assets or business relating to the subject matter of the Agreement.
16. Construction. The Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, and permitted successors and assigns. Whenever used, the singular shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. All representations, understandings and agreements between the parties with respect to the subject matter of the Agreement are merged herein, which alone fully and completely express their agreement. No other agreement, statement or promise relating to the subject matter of the Agreement that is not contained herein shall be valid or binding unless in writing. The Agreement and the documents prepared in relation hereto shall be construed without regard to any presumption or other rule requiring construction against the party who drafted it.
17. Governing Law; Disputes. The Agreement will be interpreted in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof. The parties agree that any and all disputes, claims or controversies arising out of or relating to the Agreement that are not resolved by their mutual agreement shall be submitted to final and binding arbitration before the American Arbitration Association (“AAA”), or its successor. Either party may commence the arbitration process called for herein by filing a written demand for arbitration with the AAA, with a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures in effect at the time of filing of the demand for arbitration. The costs of arbitration plus reasonable attorneys’ fees (including fees for the value of services provided by in-house counsel) shall be awarded to the prevailing party in such arbitration. The parties agree that this agreement has been entered into at PolicyPilot’s place of business in the County of Los Angeles, State of California, and any arbitration, legal action or proceeding arising out of or relating this agreement must be commenced in the County of Los Angeles, State of California. This arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief, or from pursuing an action to collect unpaid amounts due under this Agreement, in a court of competent jurisdiction. If any litigation or arbitration proceeding is commenced in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees (including allocated costs for in house legal services), costs and necessary disbursements incurred in such action or proceeding, as determined by the court or arbitrator.
18. Severability; Waiver; Survival. If fulfillment of any provision of the Agreement or performance of any transaction related hereto, at the time such fulfillment or performance shall be due, shall exceed the limits of validity prescribed by law, then the obligation to be fulfilled or performed shall be reduced to the limit of such validity; and if any clause or provision contained in the Agreement operates or would operate to invalidate the Agreement, in whole or in part, then such clause or provision only shall be held ineffective, as though not herein contained, and the remainder of the Agreement shall remain operative and in full force and effect. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Failure to exercise a right or remedy at law or granted hereunder shall not be deemed a waiver of such right or remedy. Failure to claim default hereunder shall not waive any default. Termination of this Agreement shall not release either party of their respective obligations of payment, warranty, intellectual property rights, and from the confidentiality and indemnity provisions hereof.
19. Counterparts. The Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of the Agreement, including the signature pages hereto, will be deemed to be an original.
20. Corporate Authority; Validity of Agreement. The parties warrant and represent to each other that they have the authority to enter into the Agreement and are further authorized to undertake all actions that may be required by the terms and conditions of the Agreement; provided, however, that this Agreement shall be effective only if executed by an officer of PolicyPilot.
21. Further Assurances. Each of the parties hereto shall fully cooperate with the others and with the respective counsel and accountants in connection with any steps required to be taken as part of the obligations under the Agreement.
22. Amendments. This Agreement represents the entire agreement between PolicyPilot and Client and supersedes all prior agreements, addenda, arrangements or communications, whether oral or written, between the parties. The Agreement may be amended or modified only in a writing executed by both parties hereto; provided, however, that an amendment or modification shall be effective only if executed by an officer of PolicyPilot. The parties agree that amendment of the Client filter criteria must be mutually agreeable and, if delivered via mail, courier or facsimile by Client, must be signed by Client. Alternatively, such filter criteria may be amended via email if sent to PolicyPilot from the email address set forth on the signature page to this Agreement.
23. Force Majeure. Neither party shall be liable for any delay or failure in performance due to an act of God, earthquake, labor disputes, changes in law regulation or government policy, riots, war, fire, epidemics, or other difficulties which are beyond either party’s reasonable control. In the event a party is prevented from performing its obligations hereunder due to a Force Majeure event, such party shall resume its services as soon as is reasonably possible after such Force Majeure event ceases. Payments to PolicyPilot shall not be excused by a Force Majeure event.
24. Term and Termination. The initial term of the Agreement shall be one year from the Effective Date (“Term”) and will automatically renew for successive one year periods, except that the Agreement may be terminated by Client for any reason upon thirty (30) days’ prior written notice to PolicyPilot, provided that such notice is given not less than thirty (30) calendar days after the Effective Date of this Agreement. Client acknowledges that failure to provide thirty (30) calendar days’ prior written notice of termination may cause PolicyPilot to suffer significant losses. Additionally, no termination will be effected until (i) thirty (30) calendar days after the Effective Date of this Agreement; and (ii) PolicyPilot receives payment of any outstanding Services Fees owed to PolicyPilot. PolicyPilot may terminate this Agreement at any time for any reason upon thirty (30) calendar days’ prior written notice to Client. PolicyPilot may terminate this Agreement without notice to Client at any time in the event Client breaches any material term of this Agreement.
25. Notices. All notices and other communications hereunder shall be given in writing and shall be deemed to have been duly given and effective (i) upon receipt, if delivered in person or by facsimile, email or other electronic transmission, or (ii) one day after deposit prepaid with a national overnight express delivery service. Such notices must be properly addressed to the parties at the addresses set forth on the signature page to this Agreement unless a different address for notice is later provided pursuant to this paragraph.
LEAD GENERATION SERVICES
26. PolicyPilot’s Services. PolicyPilot shall promote, market, maintain and operate an online insurance marketplace accessed through PolicyPilot’s Website at http://www.policypilot.com, or other URL’s as designated by the parties, or used in the normal course of generating internet traffic for the Services identified herein, pursuant to which PolicyPilot Consumers may research insurance services offered by Client or one or more of Client’s service providers within Client’s own network of agents, (collectively, referred to as “Client Agents” or a “Client Agent”). PolicyPilot shall maintain 24 hours a day, 7 days a week access (with the exception of reasonable downtime) via PolicyPilot’s Website for PolicyPilot Consumers to contact PolicyPilot. PolicyPilot may gather personal information from PolicyPilot Consumers as a result of their responses to certain questions, referred to as Insurance Information Inquiries.
PolicyPilot will process Insurance Information Inquiries that PolicyPilot Consumers have completed through its system. PolicyPilot may forward Insurance Information Inquiries to participating Clients whose Product Specifications, individual characteristics and type of insurance product are requested by such PolicyPilot Consumers. PolicyPilot may, in its discretion (or as otherwise determined in writing by the Parties), forward to multiple clients the Insurance Information Inquiries of all PolicyPilot Consumers whose Insurance Information Inquiries satisfy the similar State, Product Specifications and other criteria. Insurance Information Inquiries shall be delivered or made available to Client by mutually agreed upon electronic means within a reasonable time period following processing of the PolicyPilot Consumer’s Insurance Information Inquiry. Insurance information inquiries will be delivered to the Client as soon as reasonably possible after the user forwards the completed inquiry to PolicyPilot.
a. Upon receiving a request from Client to change filter specifications or Daily Volume, PolicyPilot will use reasonable efforts to make such changes within two (2) business days. In all cases, Client’s request to change Daily Volume shall be subject to Section 27 below.
b. For fixed-price Inquiries (that are not based on a dynamic bid model), no requests from Client to change filter specifications or reduced Daily Volume will be honored after Client has given PolicyPilot notice to terminate this Agreement.
c. Client and/or Client Agents are solely responsible for the determination of insurability and the verification of the identity and other stated personal information received regarding potential insureds.
d. PolicyPilot does not make any warranties, covenants or representations as to the qualifications of PolicyPilot Consumers including that a PolicyPilot Consumer can or will qualify for insurance.
e. In the event that Client and/or Client Agents does enter into an agreement with a PolicyPilot Consumer, PolicyPilot does not assume any obligation or liability of Client in any respect concerning such agreement or any related transactions, whatsoever.
f. PolicyPilot undertakes no responsibility to provide PolicyPilot Consumers any notices or disclosures that are required to be provided by Client or Client Agents under Applicable Laws in connection with its transactions with PolicyPilot Consumers.
g. PolicyPilot reserves the right to immediately suspend or terminate its Services without notice upon Client’s breach of any provision of this Agreement including, but not limited to, Client’s failure to make payment as specified under the terms of this Agreement. In the event PolicyPilot terminates its Services under this provision, Client shall be responsible for payment of all Services Fees incurred up to and including the date of termination. Client agrees there shall be no liability on the part of PolicyPilot for any losses suffered by Client as a result of any such termination.
h. PolicyPilot represents and warrants that it will (a) not market Client through any Website that is deemed to be offensive, misleading, deceptive, libelous, defamatory, obscene, intended to harass or annoy, or which violates any laws; (b) comply with all applicable state and federal laws and regulations (including the CAN Spam Act and the Gramm-Leach Bliley Act) in carrying out the terms of this Agreement; (c) send emails only to those consumers that have opted-in or otherwise consented to receiving such emails; (d) not use any deceptive, fraudulent or misleading email headers (e.g., “From” and “Subject” lines); and (e) will not deploy prizes, games or other unrelated incentives to encourage consumers to complete lead forms.
i. PolicyPilot will periodically furnish client with analysis which may include but not be limited to (a) identifying conversion aspects of various segments (b) opportunities to increase lead volumes (c) recommendation of data enrichment techniques (d) additional screens and filters (e) work flow and communications improvements
j. Except as expressly granted in this Agreement, PolicyPilot shall have no other rights of any kind in the Licensed Marks, the Client’s website or the Client’s service. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any of Client’s intellectual property or proprietary technology other than the use of the Client’s Licensed Marks in accordance with the terms of this Agreement. PolicyPilot acknowledges that the Client’s Licensed Marks are the sole property of, and this Agreement only grants PolicyPilot a limited right to present the Client under the terms and conditions of this Agreement. Notwithstanding the foregoing, PolicyPilot may use Client’s logo and/or marks on PolicyPilot’s owned and operated website properties to identify Client as a participant in PolicyPilot’s client network.
27. Client’s Responsibilities. After transmission of an Insurance Information Inquiry by PolicyPilot, Client shall use its best efforts to contact the PolicyPilot Consumer within two (2) business days. Thereafter, it shall be the sole decision and responsibility of Client to take any appropriate action regarding the Insurance Information Inquiry, provided that Client is complying with the terms of this Agreement.
a. Client agrees to purchase all Insurance Information Inquiries transmitted by PolicyPilot pursuant to this Agreement or an applicable Insertion Order. Client shall not charge or collect a fee from PolicyPilot Consumers for use of PolicyPilot’s Services under this Agreement or increase the price or cost of insurance or other products or services that Client provides PolicyPilot Consumers whose Insurance Information Inquiries Client receives under this Agreement.
b. Client shall retain records and copies of all documents relating to its transactions with PolicyPilot Consumers in accordance with Applicable Laws. If any of those records are requested by a regulatory authority, Client shall use its best efforts to provide PolicyPilot and/or the requesting regulatory authority a copy of the records and documents within five (5) business days after PolicyPilot makes a written request to Client, which request shall identify the regulatory agency requesting the records and documents as to which PolicyPilot has an obligation to report, and which will specify the records and documents requested or that must be reported. Client acknowledges that certain of the state agencies that license PolicyPilot impose on PolicyPilot an obligation to report information and produce records and documents for examination by the agencies, and that if Client fails to file the reports or produce those records and documents in a timely manner, PolicyPilot may be subject to significant consequential damages. Therefore, Client shall reimburse PolicyPilot for all expenses associated with a failure by Client to comply with these document maintenance and delivery requirements, in addition to paying a liquidated damages fee of ten thousand dollars ($10,000) for each consumer file as to which a document is requested and not timely delivered. Client shall indemnify and hold PolicyPilot harmless from any and all damages that may result from Client’s failure to comply with this Section 2.4. The obligations contained in this Section 2.4 shall survive expiration or termination of this Agreement.
c. Client will not share any Insurance Information Inquiries with any affiliated or unaffiliated third party unless and until Client obtains the PolicyPilot Consumer’s authorization to do so in accordance with Applicable Laws (Client will not use Insurance Information Inquiries for any purpose other than to evaluate the PolicyPilot Consumer’s request until such time as the PolicyPilot Consumer forms an independent customer relationship with Client or until the PolicyPilot Consumer provides Client separate authorization.
d. Client represents and warrants that (a) it shall comply with all applicable state and federal laws and regulations (including the CAN Spam Act and the Gramm-Leach Bliley Act) in carrying out the terms of this Agreement; and (b) its website and/or service shall not infringe upon the intellectual or proprietary rights of any third party.
28. Service Levels; Responsibilities of Both Parties.
a. Predictability of Daily Volume. PolicyPilot will apply all commercially reasonable practices to control and manage the maximum quantity of Insurance Information Inquiries delivered to Client on a daily basis, as specified by current mutually agreeable Client filter criteria, in order to provide a predictable flow of Insurance Information Inquiries over the course of each month. Notwithstanding the foregoing, PolicyPilot does not guarantee any specific amount of Insurance Information Inquiries that it will deliver to Client under this Agreement; Additionally, Client agrees to provide no less than a five (5) business day written notice, for all reductions in volume of ten percent (10%) of total volume or greater.
b. Notice of Technological Modification.
i. PolicyPilot shall notify Client of any applicable modification being made to the PolicyPilot service that may affect the delivery of Insurance Information Inquiries no later than thirty (30) business days prior to such modification.
ii. Client shall make applicable modifications to the delivery of Insurance Information Inquiries in the lead management system, which may include changes to daily limits, activation or inactivation of a campaign, daily timeframe, adding or removing campaigns, or adding or removing credit cards (collectively “Campaign Settings”). Any modifications to Campaign Settings will take effect immediately and shall become binding once that modification is made within the lead management system. Client shall be responsible for applicable Service Fees for those modifications, according to the Payment Terms as set in the lead management system.
iii. Modifications outside of the Campaign Settings must be requested in writing to PolicyPilot. PolicyPilot shall notify Client whether such modification is approved, and such approval shall not be unreasonably withheld.
iv. Modifications requiring notice from PolicyPilot include, but are not limited to, changes in IP Addresses, Domain Names, URLs, Usernames, Passwords, Email Addresses, Lead Format, Post Format, XML Schema, SSL Certificates and PGP Keys.
v. Should Client be unable to accept delivery of Insurance Information Inquiries due to modifications that have not been communicated to PolicyPilot, Client shall be responsible for payment of all transmitted Insurance Information Inquiries.
vi. Should either party be aware of an unplanned lapse of service or other technological failure, such party shall immediately notify the other party.
vii. PolicyPilot will provide Client with a unique “lead identifier;” a unique number for each lead sent to be used by PolicyPilot and Client.
viii. Client agrees to receive and accept the unique “lead identifier” provided to Client by PolicyPilot; Client also agrees to provide back to PolicyPilot, the information related to each unique lead identifier as agreed and identified by the parties.
c. Lead Management Systems. Client’s use of a lead management system is at its own risk If Client elects to use a lead management system, PolicyPilot shall only be responsible for delivery of Insurance Information Inquiries to Client’s designated lead management system. PolicyPilot’s delivery of Insurance Information Inquiries shall be deemed reasonable if PolicyPilot has exercised reasonable diligence to attempt to deliver such information. At all times, Client shall remain responsible for notifying PolicyPilot of any modifications that may impact PolicyPilot’s delivery of the Insurance Information Inquiries to the designated lead management system in accordance with Section 27.b. above. Client is further responsible for ensuring that lead management systems comply with the terms of this Agreement and all Applicable Laws in respect of the protection of LMB Consumer information.
29. Ping/Post (Dynamic Pricing). Client may elect to enroll in additional Service offerings, including the receipt of leads on a dynamic bid model pricing basis. This dynamic model (the “Ping/Post” Service) is outlined below:
a. Description of Services. PolicyPilot shall market, advertise and promote Client’s insurance matching service through PolicyPilot’s network channels. Such promotions shall conform to the marketing terms and conditions as mutually agreed to in writing, from time to time, among the Parties. PolicyPilot shall ping material lead detail to Client, removing all consumer contact or identification information (“Anonymous Leads”). Client will view lead detail, determine its fair market price offer, per Client’s distribution network, and ping PolicyPilot back a price offered for the lead. If PolicyPilot determines the price pinged is acceptable (according to set eligibility criteria), PolicyPilot shall then post the full lead, including identifying and contact information, to Client for the agreed-to price,
When a lead offer is posted to Client as described above, Client must immediately accept or reject the lead. If lead is rejected, Client must provide back a rejection explanation code (e.g. reason the contact information is bad). If the lead is accepted, then the lead is considered delivered and payment on that lead shall be due according to the payment provisions set forth in the Agreement.
b. Description of Fees. Client will compensate PolicyPilot for every Ping/Post lead transaction from the PolicyPilot network at a dynamic price mutually agreeable to the Parties. For the purposes of this Agreement, a “Ping/Post lead transaction” shall mean a consumer directed from the PolicyPilot form website whose data set is verified through the use of the Ping/Post confirmation process.
c. Obligations of Client. For all Ping/Post Lead transactions, Client shall:
d. Ping response. Client shall provide a timely response to consumer inquiry invitations, as outlined in Section 26(b), above.
e. Non-PII Leads. Client and/or Client’s lead management system shall be configured to receive anonymous leads for pricing verification (and if qualified, lead delivery). For the purposes of this Agreement, “anonymous leads” shall mean consumer inquiries stripped of any Personally Identifiable Information. PolicyPilot reserves the right, in its sole discretion, to suspend delivery of anonymous leads at any time.
f. Consumer Approval Response SLA. Client agrees, for the purpose of receiving Ping/Post Leads, that:
i. Ping Response Time. All pricing responses shall be received by PolicyPilot from Client within a commercially reasonable timeframe or such responses shall be considered forfeit, and no match shall be provided, regardless of Client matching standards; such times shall be determined in good faith, at PolicyPilot’s sole discretion.
ii. Ping Response Aggregate. Client agrees that in the event of failure to respond to a commercially reasonable percentage of Ping/Post Lead inquiries shall entitle PolicyPilot, in its sole discretion, to suspend Client’s participation in the Ping/Post program.
30. Reporting. Client shall provide reporting access to PolicyPilot, providing real-time information on number of leads accepted and price-per-lead given. This reporting shall be used for verification purposes against PolicyPilot’s internal reporting system. For the avoidance of doubt, PolicyPilot’s reporting system shall be the principal data set used for billing purposes.