Effective date: May 22, 2020 (updated)
WHEREAS, Zillion, represents insurance companies and other similar entities (each, an “Insurance Provider,” and together, the “Insurance Providers”) in the placement of property and casualty insurance policies generally, and has developed proprietary software (the “Software”) to enable the creation and management of statements of value and to enable a simple and automated insurance pricing, underwriting, and claims process linked to e-commerce, point of sale, item asset, and inventory data (the “Service”); and
WHEREAS, Company desires to engage the services of Zillion to solicit, quote and place insurance coverage (the “Policies”) with Insurance Providers for the benefit of Company’s customers (“Customers,” and following the placement of insurance coverage for the benefit of such Customers with Insurance Providers, “Policyholders”); and
WHEREAS, in order to fulfill such engagement, Company will use the Software and integrate the Software with the Company’s Point of Sale System (“POS”) and e-commerce website (if applicable), to provide Customer referrals through real-time API data feeds to Zillion; and
WHEREAS, Zillion and Company desire to enter into this Agreement which provides, among other things, for Zillion to pay a fee to Company (the “Fee”) for data integration through the Service, as set forth in Section 3.4.
NOW, THEREFORE, in consideration of these mutual agreements, the sufficiency of which is acknowledged, it is agreed as follows:
Section 1. Scope of Agreement
The parties intend to make it “super easy” for Customers of Company to obtain insurance to cover the loss of, theft of, or damage to physical assets they purchase from Company. This Agreement governs the relationship between Zillion and Company and is binding upon the parties and their respective heirs, successors and assigns. It is further understood that this Agreement replaces any prior agreement between the parties, constitutes the entire Agreement of the parties, and may not be changed or modified unless done so in writing signed by the parties.
Section 2. Company’s Status and Duties
2.1. It is understood that Company is an independent contractor and not an agent of Zillion or of any Insurance Provider represented by Zillion. Company has no authority to solicit insurance policies or bind insurance Policies on behalf of Zillion or any Insurance Providers represented by Zillion.
2.2. Company shall use Zillion’s Software, and, embed Zillion’s Software into Company’s e-commerce website (if applicable), integrate Zillion’s Software with Company’s Point of Sale System, target market the Service to existing Customers, and enable integration for data as set forth in Appendix A to Zillion through a Zillion API made available to Company or by other means agreed to by both parties.
2.3. Company provides authorization to Zillion to enable integration between Zillion and the Company’s Point of Sale and eCommerce system (if applicable).
2.4. Unless specified in writing and agreed to by the parties, Company will not collect insurance premiums due from any Customer.
Section 3. Zillion’s Status and Duties
3.1. It is understood that Zillion is an independent contractor and not an agent of Company. Zillion is a licensed property and casualty insurance agency.
3.2. As between Zillion and Company, Zillion shall have the sole right to communicate with Policyholders regarding their Policies and Company agrees not to interfere with any such communication, nor to communicate with Policyholders regarding any aspect of their Policies. Company shall refer any communications it receives from Policyholders regarding their Policies to Zillion.
3.3. Zillion shall collect all annual Policy premiums directly from Policyholders, unless otherwise specified in writing and agreed to by the parties.
3.4. In consideration of the data integration established between the parties, Zillion will pay a one-time Fee to Company for leads, within 30 days following the quarter in which Zillion has utilized the data integration to create a customer’s insurance application to conduct underwriting. The Fee shall be based upon the jewelry replacement value established by the Company, or the Manufacturers Suggested Retail Price (MSRP) and excluding discounts and taxes, for the insured items established by the use of the Service. Your specific Fee can be found in the settings section after logging into the jewelers section of our website. For the avoidance of doubt, Zillion will not be required to pay a Fee to Company for any jewelry it insures without the use of the Service.
Section 4. Cancellation
There shall be no flat cancelation under any circumstances of any Policies bound and/or written under this Agreement, except as otherwise required by relevant state law.
Section 5. Approval of Co-Branded Advertising
It is the desire of both parties to actively work together to market the Service, issue a press release, and use each other’s Marks on their respective marketing materials and websites. Beyond the use of Marks and a press release, any additional marketing of the Service will require express written consent by both parties to issue, print or circulate any letter, pamphlet, advertisement, publication or statement, oral or written, referring in any way to this Agreement, the contents of this Agreement, the existence of the business relationship created by this Agreement, or representing any relationship of any kind between Company, Zillion or any insurance company represented by Zillion.
Section 6. Indemnification
Each party (an “Indemnitor”) agrees to indemnify, defend and hold harmless the other party, its parent, direct or indirect subsidiaries, controlled affiliates, successors and assigns and each of their respective officers, shareholders, representatives, directors, trustees, affiliates, subsidiaries, employees, contractors and authorized agents (collectively, a party’s “Indemnitees”) from and against any complaint, demand, lawsuit, inquiry, investigation, claim, cause of action, action or proceeding asserted, commenced or threatened against the other party or any of its Indemnitees by any third party (whether or not litigation has been filed or threatened, including, without limitation, inquiries, investigations, and charges by any regulatory body), (each a “Claim” and, collectively, “Claims”) and which arise from any act, omission, negligence or intentional misconduct of the indemnifying party (or its authorized agents, employees, contractors and subcontractors) in connection with the performance of, and within the scope of, this Agreement, including without limitation, any breach of this Agreement by a party, its representatives, agents, employees or contractors and the failure of a representation or warranty made by a party hereto to be true and accurate as of the Execution Date or at any time during the Term. The Indemnitee shall notify the Indemnitor in writing promptly upon learning of any Claim for which indemnification is being sought hereunder. The Indemnitor shall be entitled to participate in the defense of any such Claim and the parties will cooperate in such defense. In no event shall either party have an obligation to indemnify the other with respect to any claim settled without the mutual written consent of both parties, which consent shall not be unreasonably withheld.
Section 7. Limitation of Liability.
EXCEPT WITH RESPECT TO A VIOLATION OF SECTION 9 OR SECTION 14:
(a) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE IN ANY WAY ARISING OUT OF THIS AGREEMENT (WHETHER BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY) OR ITS TERMINATION, AND IRRESPECTIVE OF WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(b) THE CUMULATIVE AND TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED TEN THOUSAND DOLLARS ($10,000.00).
Section 8. Warranty Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES EITHER EXPRESS OR IMPLIED, AS TO THE PRODUCTS, SERVICES, OR INFORMATION PROVIDED HEREUNDER, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
Section 9. Confidentiality
9.1. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer Data; Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any legal or contractual obligation to the Disclosing Party, (iii) is received from a third party without, to the knowledge of Receiving Party, any breach of any legal or contractual obligation by such third party to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference or use of the Confidential Information. The Receiving Party agrees to notify the Disclosing Party in writing of any misuse or misappropriation of Confidential Information, promptly after Receiving Party learns of any such misuse or misappropriation.
9.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes of performance pursuant to this Agreement and who have agreed or have a duty to keep the Confidential Information confidential. Receiving Party shall be responsible for any breach of this Section 7 by its employees, contractors or agents.
9.3. Protection of Customer Data. Without limiting the above, the parties shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personally Identifiable Information as defined under the California Online Privacy Protection Act 2003, as amended, regarding Customers (“Customer PII”). The parties shall not (i) modify Customer PII, (ii) disclose Customer PII except as compelled by law or as expressly consented to electronically or in writing by Customer, or (iii) access Customer PII except to provide the Service or prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
9.4 Protection of Company Data. Zillion shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Company Data. Zillion shall not (i) modify Company Data, (ii) disclose Company Data except as compelled by law or as expressly permitted in writing by Company, or (iii) access Company Data except to provide the Services or prevent or address service or technical problems, or at Company’s request in connection with Company support matters.
Section 10. Intellectual Property Ownership, License, and Use
10.1. Ownership. Each party shall retain all their right, title and interest, including all copyrights, patent rights, and rights in trademarks, service marks, logos and commercial symbols as well as all other intellectual property rights, and all goodwill associated therewith (collectively, “Intellectual Property”). Neither party shall acquire any interest in the other party’s Intellectual Property or any other products, services or materials, or any copies or portions thereof, provided by such party pursuant to this Agreement, and any commercial use of the Intellectual Property other than pursuant to this Agreement is strictly prohibited.
10.2. Limited License. Each party (a “Licensor”) hereby grants to the other party hereto (a “Licensee”) a non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free and limited license to use its Marks, Software, and Content solely in connection with its obligations under this Agreement. All such use shall be in accordance with each party’s reasonable policies regarding advertising and trademark usage as shall be established or changed from time to time in each party’s sole discretion upon written notice to the other.
Section 11. Expenses
Except as otherwise set forth in this Agreement, each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of this Agreement.
Section 12. Single Point of Contact (SPOC)
Each party will designate one (1) representative from their respective organizations who will have the responsibility as a relationship manager to the other party for communicating on all matters arising out of the Agreement on an ongoing basis throughout the term.
Section 13. Term and Termination; Survival
This Agreement shall have an initial term of one year from the Execution Date, and shall automatically renew for subsequent one-year terms unless either party provides to the other party a written notice of non-renewal at least 30 days prior to the scheduled date of termination. This Agreement may be terminated at any time by either party with or without cause upon 30 days’ prior written notice to the other party. The rights and obligations of the parties in the following Sections of this Agreement shall survive termination or expiration of this Agreement: Sections 4, 5, 6, 7, 8, 9, 10, 11, 13, 14 and 15.
Section 14. Reciprocal Non-Solicitation Covenant
Upon termination or expiration of this Agreement, and for a period of one year thereafter, neither party shall directly or indirectly, for its own purposes or those of another, and without prior written agreement of the other party, solicit any then current Policyholders to (a) purchase products or services which compete with those of the other party, or (b) in the case of Company, terminate any then existing Policy under which such Policyholders are insureds.
Section 15. General
15.1. Governing Law. This Agreement shall be governed by, and construed in accordance with, the substantive laws in the State of California without regard to conflict of law principles.
15.2. Compliance with Laws. Each party shall comply in all respects with all applicable legal requirements governing the duties, obligations, and business practices of that party and shall obtain any permits or licenses necessary for its operations. Neither party shall take any action in violation of any applicable legal requirement that could result in liability being imposed on the other party.
15.3. Savings Clause. The invalidity or unenforceability of any provision of Agreement shall not affect the other provisions hereof, and Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
15.4. Arbitration. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the State of California and administered by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to that party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorneys’ fees and legal costs.
15.5. Assignment. In the event of the sale or transfer by Zillion of all or substantially all of its assets related to this Agreement to an affiliate of Zillion or to a third party, whether by sale, merger, or change of control, Zillion shall have the right to assign any or all rights and obligations contained herein and the Agreement to such Affiliate or third party without the consent of Company and the Agreement shall be binding upon such acquirer and shall remain in full force and effect. Company may not assign any of its rights or obligations under this Agreement without the consent of Zillion.
15.6. Notices. All notices given pursuant to this Agreement will be in writing and will be given by personal delivery, commercial overnight delivery service, or by certified or registered mail return receipt requested, addressed per the Address listed in paragraph 1 of this agreement with the Attention To the name who’s signature is listed below, or to such other address as either party may give notice to the other in writing. Notice will be considered to have been given: (a) if given by personal delivery, on the date of delivery; (b) if given by commercial overnight delivery service, on the date of delivery as evidenced by the service’s delivery confirmation records; or (c) if given by certified or registered mail return receipt requested, on the third business day after the date on which the notice is deposited in the mail.
Appendix A – Integration, Marketing, & Claims.
1. Zillion CustomerCenter. Company will have access to use the Zillion CustomerCenter Software in order to create Company Appraisals/Statements of Value for their customers and to enable the offering of Zillion Insurance to Company’s customers. By clicking a button in the Zillion CustomerCenter, Company will be able to send a text and/or email to their customer offering insurance coverage through Zillion.
2. Zillion POS Integration. Company will have the option to integrate the Zillion CustomerCenter service with Company’s POS system in order to facilitate an easier process. Company’s POS system will push completed order data to the Zillion CustomerCenter API in order to populate Company Statements of Value in the Zillion CustomerCenter.
3. Zillion eCommerce Integration. Company will have the option to integrate Zillion with their eCommerce system for the purpose of offering Zillion insurance to customers at time of checkout. As a result, customers can easily view an insurance offer and purchase insurance from Zillion in 1 click.
4. Customer Consent. The data in the Zillion CustomerCenter Software can be entered manually or through integration with the Company POS and/or eCommerce system, as indicated in 1-3 above. This data is managed by Company and Zillion has no right to use this Customer data unless Customer has given consent to send their data to Zillion for the purpose of providing the insurance Services.
5. Returning Customers Requesting Quote. Customers may return to Zillion’s website at www.myzillion.com and request an insurance quote. In this case, Zillion will obtain consent from the customer to obtain data from Company and will obtain customer data from the Company via the Zillion CustomerCenter in order to fulfill the insurance quote request.
6. Company Website Marketing. Company will create an Insurance page on Company website that contains information on Zillion Insurance and the partnership with Company.
7. Company Email Marketing. Company will email customers (either as part of a broader email or as a standalone email) after their jewelry purchase to remind them to insure their jewelry with Zillion Insurance. The email will contain a link which will direct the customer to the Zillion website in order to request an insurance quote.
8. Zillion Marketing Postcard. Company will present their Customers with a printed Zillion Postcard at time of jewelry pickup by the Customer.
9. Claims. Zillion will endeavor to refer all Customer claims for jewelry replacement back to the Company. Both parties will work together to deliver the replacement jewelry to the customer in less than 14 days
10. Replacement. Replacement items will be valued at the wholesale cost plus a Jeweler’s profit percentage. The specific Jeweler’s profit percentage can be found in the settings section after logging into the jewelers section of our website. Company will submit its wholesale cost invoice to Zillion, and Zillion will pay Company upon replacement to customer. Neither Zillion, nor insurance providers represented by Zillion, are obligated to pay more than the Scheduled Limit of Insurance on any Insurance Policy issued to Customers of Company.
11. Repair. Zillion will endeavor to direct repairs back to Company, or company may have Zillion direct the repair to one of Zillions repair shop partners. If an item cannot be repaired, then Zillion will replace the item as per #9 above. If Zillion replaces an item, Company will send the original damaged item(s) to Zillion.