COI RESOURCES TERMS & SERVICES
1. FEES AND PAYMENTS
The Client shall pay to the Company the fees, charges, and expenses specified herein, including those set forth on Exhibit A. Each Party shall be responsible for its own taxes arising from performance of this Agreement and shall be responsible for all payroll taxes and fringe benefits of their respective employees. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid by the Client on behalf of Company or its employees.
2. INTELLECTUAL PROPERTY
(a) ACKNOWLEDGEMENT OF OWNERSHIP. Each party agrees that any proprietary information and material that one party may share with the other party is owned by the party of the first part (or its licensors) and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that the party of the second part shall not use such proprietary information or materials in any way whatsoever except as permitted by and in compliance with the terms of this Agreement.
(b) COPYRIGHTS. The use by a party of copyrighted material belonging to the other party is prohibited, except as permitted in this Agreement.
(c) TRADEMARKS. Nothing herein is intended to give any party any rights with respect to the other party’s trademarks, service marks, graphics, and logos and neither party is granted any right or license with respect to any of the aforesaid except as otherwise expressly stated herein.
3. CLIENT RESPONSIBILITIES
Unless otherwise specified in this Agreement or in a separate writing signed by both the Client and the Company, the Client shall be responsible for providing the Company with the following information: (a) a current list, updated upon request of Company, of the Client’s network affiliates; (b) the insurance requirements for each of the Client’s network affiliates; and (c) upload information for each of the Client’s network affiliates; including all items referenced on import spreadsheet (point of contact, email address, physical address and telephone number). In addition, upon request of Company, Client shall provide any Company with any existing certificates of insurance or other evidence of insurance coverage in Client’s possession for each of Client’s network affiliates.
4. COMPANY RESPONSIBILITIES
Unless otherwise specified in this Agreement or in a separate writing signed by both the Client and the Company, the Company shall be responsible for: (i) working with the Client to set up and manage the COI Services; (ii) provide digital access to the information supplied by the Client in an up-to-date and reliable manner; (iii) provide ongoing and timely support of the Services; (iv) entering incoming certificates; (v) processing certificates through validation and compliance operations; (vi) managing
ongoing communications with network affiliates to attain compliance; (vii) tracking renewals; and (viii) managing all data entry and compliance tracking necessary to support the certificate tracking program and the Services. The Services shall include all services described herein, including, but not limited to, those set forth in Exhibits A and C.
The Company shall maintain, at its own expense, insurance coverage in the following amounts: (i) Worker’s Compensation and Employer’s Liability with limits at least equal to statutory requirements; (ii) Commercial General Liability insurance, including without limitation, personal injury coverage, with policy limits of not less than $2,000,000 in the aggregate; (iii) Errors and Omissions coverage with policy limits of not less than $1,000,000 in the aggregate; and (iv) Cyber Liability coverage with privacy and security coverage with policy limits of not less than $250,000 in the aggregate. Any and all such insurance must be underwritten by an insurer that is properly licensed to do business and has an A.M. Best rating of A-(IV) or better. The Company shall deliver to the Client certificates of insurance evidencing such coverage.
5. WARRANTIES AND INDEMNIFICATION
(a) The Company warrants that it owns or has acquired rights to all proprietary interests in the Services necessary to grant the access rights granted to the Client in this Agreement.
(b) Each party warrants and represents that there are no provisions of any law, whether federal, state or local, or of its certificate of incorporation, by-laws or agreement of any kind, nature or description binding upon the such party which prohibits it from entering into this Agreement and that the each party’s performance of the Agreement has been duly authorized and is a binding obligation of such party.
Except as otherwise provided in this Agreement, the Company makes no representations or warranties, express or implied, of any kind. The Client understands and agrees that the limited express warranties set forth in this Agreement are exclusive and the Company disclaims any and all other warranties of any nature whatsoever with respect to the Services, the support and training services provided with respect to such Services, whether oral or written, express or implied, particularly including the implied warranties of merchantability and fitness for a particular purpose.
The Company shall use reasonable efforts to protect information submitted by the Client in connection with the Services, but the Company hereby disclaims any and all liability to the Client for any loss or liability relating to such information, except in instances of gross negligence or willful misconduct by the Company or its affiliates.
The Company warrants and represents that it shall accurately report information obtained in connection with this Agreement but otherwise makes no warranties regarding the sufficiency, appropriateness, or reasonableness of insurance information, including but not limited to insurance policy amounts, carriers, contracts, premiums, named insureds, additional insureds, endorsements, certificates of insurance or other requirements. Any warranty regarding the accuracy of the reported information shall be limited to the effective date for which such information is reported and Company disclaims any liability for changes in circumstances and factual information occurring subsequent to the effective date for which it is reported. In gathering the information contemplated herein, Company is under no obligation to take action in excess of that specifically required in the Term Sheet. Furthermore, Company shall not be responsible for any inconsistencies or discrepancies between the certificates of insurance obtained with respect to a Client’s network affiliate and the underlying insurance policy associated with such certificate. It is the Client’s sole responsibility to set, enforce, monitor, and review the insurance information tracked via COI Resources.
The Client agrees to defend, indemnify, and hold harmless the Company and its agents and representatives from any claim or demand, including reasonable attorney’s fees, made by any third party arising out of the Client’s negligent or wrongful use of the Company’s database or Client’s violation of this Agreement, including but not limited to Client’s submission to Company of any content or information that is (a) fraudulent, misleading, or known to be inaccurate, (b) is in violation of the rights of third parties, or (c) arises from Client’s breach of this Agreement.
The Company agrees to defend, indemnify, and hold harmless the Client and its agents and representatives from any claim or demand, including reasonable attorney’s fees, made by any third party arising out of the Company’s violation of this Agreement or Company’s gross negligence or willful misconduct in the provision of the Services.
The indemnifications set forth herein shall be subject to the limitation of liability set forth below.
6. LIMITATION OF LIABILITY
Except in the event of a party’s gross negligence or willful misconduct (collectively, “excluded claims”), in no case shall the Client or the Company, or either of their respective directors, officers, employees or agents, be liable for any indirect, incidental, punitive, special, or consequential damages. Except for the excluded claims, each party’s liability to the other, under this Agreement, for any cause whatsoever, is limited to the amount paid by the Client during the twelve (12) month period of this Agreement immediately preceding the date on which such liability arose. With respect to the excluded claims, each party’s aggregate liability to the other party shall not exceed the sum of the amounts paid on behalf of the respective party’s insurers in settlement or satisfaction of claims under the terms and conditions of that party’s insurance policies applicable thereto. Because some states, jurisdictions or countries do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states, jurisdictions, or countries, the Company's liability shall be limited to the extent permitted by applicable law.
Company is not a party to any agreement between Client and Client's vendors, including, without limitation, any insurers or their underwriters, any service providers or vendors, any lenders, or other third parties in contractual relationships with Client (“client vendors”). Company has no responsibility for liabilities, losses, damages, expenses, or other monetary charges (“liabilities”) suffered or incurred by Client as a result of the actions or omissions of Client's vendors. Specifically, company is not responsible for any liabilities arising out of or related to the failure of any of client's vendors to maintain and convey required insurance, bonds or other liability protection.
7. NONDISCLOSURE AND CONFIDENTIALITY
Each party may disclose to the other party certain Trade Secrets and Confidential Information (as defined herein) of such party or its affiliates, suppliers, or customers. For purposes of this Agreement, “Trade Secrets” means information, without regard to form, that: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; “Confidential Information” means information, other than Trade Secrets, that is of value to its discloser and is treated as confidential; “Proprietary Information” means Trade Secrets and Confidential Information, including, without limitation, the Services; “Discloser” refers to the party disclosing Proprietary Information hereunder, whether such party is the Company or the Client and whether such disclosure is directly from Discloser or through Discloser’s employees or agents; and “Recipient” refers to the party receiving any Proprietary Information hereunder, whether such party is the Company or the Client and whether such disclosure is received directly or through Recipient’s employees or agents.
Recipient agrees to hold the Proprietary Information disclosed by Discloser in strictest confidence (and in any event, in no less confidence than Recipient treats its own Proprietary Information) and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information disclosed by Discloser to any unaffiliated third party, or utilize the Proprietary Information disclosed by Discloser for any purpose whatsoever other than as expressly contemplated by this Agreement. The Client acknowledges that the Company claims that the Services are Proprietary Information, and the Client agrees to treat such information as Proprietary Information in accordance with the terms of this Agreement. With regard to the Trade Secrets, the obligations in this section will continue for so long as such information constitutes a Trade Secret under applicable law. With regard to the Confidential Information, the obligations in this section will continue for the term of this Agreement and for a period of so long as such information remains confidential. The foregoing obligations will not apply if and to the extent that: (a) the information communicated was already known to Recipient, without obligations to keep such information confidential, at the time of Recipient’s receipt from Discloser, as evidenced by documents in the possession of Recipient prepared or received prior to disclosure of such information; (b) the information communicated was received by Recipient in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; or (c) the information communicated was publicly known at the time of Recipient’s receipt from Discloser or has become publicly known other than by a breach of this Agreement.
The Company agrees that it shall not sell, trade, market, or otherwise distribute personally identifiable information it receives in connection with this Agreement, including, but not limited to, the Client and vendor information and other sensitive information. The Company shall keep all of the Client’s secure data strictly confidential. The Company shall restrict access to the Client’s secure data to individuals within the Company who require the information in the ordinary course of servicing the Client’s account. The Client’s secure data will be used only for the business purposes contemplated herein. Any suspected breaches to this provision will be reported to the Client immediately.
The Company Terms of Use and/or Privacy Policy and other limitations and restrictions with respect to Client’s website access to information furnished in connection with the Services may be controlled and/or monitored by Company for compliance purposes, and Company reserves the right to enforce the Terms of Use and Privacy Policy and other limitations and restrictions contained herein. The Terms of Use and Privacy Policy, which may be revised by Company in its sole discretion, from time to time, are incorporated herein by reference.
8. TERMINATION
This Agreement will remain in effect for the curation of services rendered starting at the Effective Date Termination of services requires either party gives the other party written notice of nonrenewal prior to the renewal date.
Notwithstanding the foregoing, this Agreement may be terminated as follows:
(a) by either party upon the giving of written notice in the event that the other party fails to discharge any obligations or remedy any default under this Agreement for a period continuing more than 30 days after the aggrieved party shall have given the other party written notice specifying such failure or default and that such failure or default continues to exist as of the date upon which the aggrieved party gives such notice so terminating this Agreement; or
(b) by either party upon the giving of written notice in the event that the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium.
(c) by either party with a written notice after prior to renewal date.
Upon the termination of this Agreement, the Client shall immediately pay the Company all amounts due to the Company. Upon termination or expiration of this Agreement, the sections titled “Nondisclosure and Confidentiality”, “Limitation of Liability”, and “Governing Law” and other sections of this Agreement that expressly or by their nature survive any termination or expiration of this Agreement or impose any obligations following the termination or expiration of this Agreement, will continue and survive in full force and effect. Upon written request by the Client, the Company shall release a copy of all certificates of insurance, endorsements, and other
documents that have been submitted by the Client through the Services. The documents will be delivered in electronic format.
9. ENFORCEMENT OF THESE TERMS
Each party reserves the right to takes steps it believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited a third party claim that the Client’s use of the Services is unlawful and/or infringes such third party's rights). Each party agrees that the other party has the right, without liability, to disclose any information to law enforcement authorities, government officials, and/or a third party, as it believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement.
10. FORCE MAJEURE
Neither party will be liable for any default or delay in the performance of its obligations hereunder: (a) if and to the extent that such default or delay arises out of causes beyond its reasonable control, including default or delays of the other party, acts of God, acts of war, acts of governmental authority, acts of public energy, insurrection, earthquakes, fires, cable cuts, floods, terrorism, and riots (each, a “Force Majeure Event”) and (b) provided such default of delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing party through the use of alternative sources, work-around plans or other means. Upon the occurrence of a Force Majeure Event, each party shall be excused from further performance or observance of the obligation(s) affected so long as such circumstances caused by the Force Majeure Event prevail and the parties use their reasonable efforts to promptly recommence performance or observance of said obligation(s). The party claiming excuse by Force Majeure so affected in its performance will immediately notify the other by telephone (to be confirmed in writing within five days of the inception of the Force Majeure Event) and describe at a reasonable level of detail the circumstances causing such delay. Notwithstanding any other provision of this Section, a Force Majeure Event shall not relieve Client of its obligations to pay monies due and owing to Company hereunder for Services rendered.
11. CHANGES
The Company may, at any time and from time to time, propose to update, revise, supplement, or otherwise modify the terms or conditions with respect to the Services. Such updates, revisions, supplements, and modifications will be subject to mutual agreement. The Company may, in its sole discretion, at any time and from time to time, update, revise, supplement or otherwise modify its Terms of Use and/or Privacy Policy with respect to online access to information furnished in furtherance of the Services, and Client’s continued use of such online access shall be deemed Client’s acceptance of such modifications.
12. MISCELLANEOUS
(a) RELATIONSHIP OF PARTIES. This Agreement will not be construed to create any employment relationship, partnership, joint venture, or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party.
(b) MARKETING. The Company shall not reference the Client’s execution of this Agreement and its status as a user of the Services on Company’s website, in marketing materials, or in sales presentations without the prior written consent of the Client. The Company may not use the Client’s trade names and trademarks in connection with such usage or otherwise without the prior written consent of the Client.
(c) BINDING EFFECT. This Agreement is binding upon and inures to the benefit of the parties, their legal representatives, and their respective transferees, successors, and assigns as permitted by this Agreement. There shall be no third-party beneficiaries to this Agreement.
(d) ASSIGNMENT. Except as otherwise set forth in this Agreement, this Agreement and all rights and obligations hereunder may not be assigned or delegated in whole or in part by either party without the prior written consent of the other, except the rights and obligations of either party may be assigned to another entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities and/or assets of such party. A transfer of more than fifty percent (50%) of the voting stock or other ownership interest of either party shall be deemed a permitted assignment for the purposes of this section.
(e) GOVERNING LAW AND FORUM. This Agreement is governed by and construed in accordance with the laws of the state of Utah without regard to its rules regarding conflict of laws.
(f) NO WAIVER No delay or failure in exercising any right hereunder and no partial or single exercise thereof will be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement will constitute a consent to any prior or subsequent breach. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable law. All notices required to be given hereunder will be given in writing delivered by any means which provides written evidence of the date received, addressed to the signatory at the address set forth above, or such other person and address as may be designated from time to time in writing. All notices will be deemed given at the time receipt is evidenced. No modifications, additions, or amendments to this Agreement will be effective unless made in writing as an addendum to this Agreement and signed by a duly authorized representative of each party. Both parties acknowledge that this is an arms-length transaction or relationship. There exists no implied or otherwise unstated covenants, rights or obligations by, of or against either party.
(g) ENTIRE AGREEMENT. The Client and the Company each acknowledge that they have read this Agreement, understand this Agreement, and agree to be bound by its terms and conditions. Further the Client and the Company agree that this Agreement, together with any exhibits attached to this Agreement and expressly made a part hereof, will be the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
(h) REMEDIES. All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy will not be deemed an election of such remedy to the exclusion of other remedies. In the event that either party hereto brings legal action against the other party and shall recover a judgment against such party therein, then the prevailing party shall be entitled to reimbursement from the other party for all expenses thus incurred, including reasonable attorneys' fees.
PAYMENT OF SERVICES
FEES AND PAYMENTS
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2. INTELLECTUAL PROPERTY
(a) ACKNOWLEDGEMENT OF OWNERSHIP. Each party agrees that any proprietary information and material that one party may share with the other party is owned by the party of the first part (or its licensors) and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that the party of the second part shall not use such proprietary information or materials in any way whatsoever except as permitted by and in compliance with the terms of this Agreement.
(b) COPYRIGHTS. The use by a party of copyrighted material belonging to the other party is prohibited, except as permitted in this Agreement.
(c) TRADEMARKS. Nothing herein is intended to give any party any rights with respect to the other party’s trademarks, service marks, graphics, and logos and neither party is granted any right or license with respect to any of the aforesaid except as otherwise expressly stated herein.