Verifly Insurance Services, Inc. d/b/a Thimble Insurance Services (“Thimble”), a New York corporation, may at times offer licensed producers (“Company”) the opportunity to participate in its Referral Program and earn fees (“Commission”) as further set forth herein. To participate, Company must agree to these terms, which are a legally binding agreement (“Agreement”) between Thimble and Company, and become part of the Thimble Terms of Service.
I. BACKGROUND
1. Thimble is a duly licensed insurance producer that operates a proprietary insurance distribution platform through its internet website and/or through its mobile application computer program, (the “Platform”). Thimble currently markets insurance products, on behalf of certain insurance carriers with whom it has established a relationship, including but not limited to episodic / use-based commercial insurance products (“Products”). Thimble allows users to obtain the Products through its proprietary technology Platform (the “Service” or the “Thimble Service”).
2. Subject to the terms, limitations, and conditions of this Agreement, the Company wishes to solicit applications for insurance policies, as available on the Thimble Platform (the “Policies”) and as are issued by the insurance companies for which Thimble acts as an insurance producer and program administrator (each an “Insurer”, and collectively, “Insurers”).
3. Thimble hereby appoints Company as a non-exclusive representative of Thimble to promote, market and advertise the Thimble Service, and Company hereby accepts such appointment.
II. LICENSE GRANT
1. Subject to the terms and conditions of this Agreement, Thimble grants to Company a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free, limited license to access and use the Services, and associated content, information or material as provided by Thimble to Company in any medium now in existence or hereafter developed, including but not limited to any referral mediums, plug-ins, widgets, code, software, programming interfaces, access keys, algorithms, tools upgrades, updates or error connections thereto (collectively, the “Content”), during the term of this Agreement in the manner contemplated by the Parties and this Agreement.
2. Company will comply with all applicable laws, rules and regulations in connection with its use of the Services and/or Content. Company will not, and will not permit any third party to: (i) copy, modify, translate, or create derivative works of the Services and/or Content; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct, identify or discovery any source code, underlying ideas, underlying user interface techniques, or algorithms of the Services and/or Content; (iii) publicize any access keys, which must, at all times, be protected by the Company against modification and/or unauthorized disclosure; (iv) circumvent or attempt to circumvent any technological protective measures put in place to prevent or restrict access to the Services and/or Content, including without limitation, other accounts, computer systems or networks connected to the Services and/or Content; or (v) use or view the Services and/or Content for the purposes of developing, directly or indirectly, a product or service competitive to the Services and/or Content.
3. Company agrees that Thimble will not be responsible, and Company will indemnify Thimble in accordance with Section XIII, for any malfunctions, errors, data inaccuracies, or improper results attributable to Company’s incorrect, unauthorized, or unsupported installation or use of the Thimble Services and/or Content.
III. THIMBLE’S RESPONSIBILITIES
1. Thimble will provide the Service to Customers pursuant to terms of service or similar agreements directly between Thimble and such Customers.
2. Thimble will provide Company with a referral medium (the “Referral Medium”) to the Thimble Platform, including but not limited to a referral link that enables the Company to display a referral link (the “Referral Link”) on the Company’s website that visitors to such site(s) can click for the purpose of entering Thimble’s website. The Referral Medium will direct potential customers to the Thimble Platform where they will have the opportunity to purchase insurance products.
3. Thimble may also provide web pages, flyers, inserts or other content Thimble deems helpful to the Company making the Service available to Customers.
4. Thimble shall, in its sole discretion, have the absolute right to accept, decline, reject or submit to the Insurer(s) for acceptance any applications for insurance, and Thimble shall incur no liability for refusal or failure to place any such risk. No provision of this Agreement shall be construed as permitting the Company to bind any risk.
IV. COMPANY’S AUTHORITY AND RESPONSIBILITIES
1. Company represents and warrants to Thimble that it:
a. Agrees to comply with all guidelines, rules, requirements, and restrictions of Thimble and the Insurer(s) as well as all applicable laws and regulations in connection with this Agreement. Company specifically acknowledges receipt of Thimble’s policies and procedures and will observe and comply with all of Thimble’s policies and procedures, both existing and those that are issued from time to time by Thimble in the course of this Agreement. Company agrees to participate in training activities as requested by Thimble to maintain current knowledge of Thimble products and procedures;
b. Will not directly or indirectly, induce any Customer or its/their affiliates to discontinue its/their relationship with Thimble.
Company may refer potential insureds for the Policies to Thimble; provided, however, that Thimble shall, in its sole discretion, have the absolute right to accept, decline, reject or submit to the Insurer(s) for acceptance any applications for insurance for risks referred by Company, and Thimble shall incur no liability for refusal or failure to place any such risk. No provision of this Agreement shall be construed as permitting the Company to bind any risk which has not been authorized in writing by Thimble.
3. It shall be the responsibility of Company to:
a. Remain an insurance producer in good standing, licensed by the insurance regulators in all states in which Company conducts business including all states in which the Parties intend this Agreement to apply. If Company is notified that its license or authorization to engage in the insurance business has been or is threatened to be revoked or suspended by any governmental entity, or is surrendered, terminated, non-renewed, lapses or is otherwise discontinued in any jurisdiction where such license or authorization is necessary for purposes of this Agreement, then Company shall promptly notify Thimble within ten (10) days in writing and cease and desist from engaging in any in connection with this Agreement in the affected jurisdiction. Company shall then take all commercially reasonable actions to fully restore its license or authorization;
b. Comply with all statutory and regulatory authority governing the sale, solicitation and negotiation of the Policies;
c. Secure and provide to Thimble at any time, at Thimble’s request, each of the current policy’s declaration page and evidence that Company maintains in-force (a) professional errors and omissions liability insurance, and (b) cyberinsurance, each with a limit of no less than $1,000,000 (One Million Dollars) per each occurrence written by an insurer acceptable to Thimble, for as long as this Agreement is in effect. Company will notify Verify in writing at least ten (10) days in advance of any proposed cancellation, actual cancellation or material change in coverage of Company’s error and omission insurance. Failure of the Company to obtain and maintain the insurance required by this Section shall be a material failure to comply with the terms of this Agreement;
d. Notify Thimble in writing within 48 hours of Company becoming aware of all claims, suits, and notices arising under a Policy placed by Thimble pursuant to this Agreement;
e. Immediately notify Thimble of any material changes affecting the risk during the policy period and at any subsequent renewal; and
f. Make all reasonable efforts to provide prompt service and all reasonable assistance to policyholders.
4. Company shall have no authority to do any of the following:
a. Bind any Insurer(s) or Thimble, commit to or issue binders, policies or other written evidence of insurance on behalf of Thimble. Company shall not at any time hold itself out as being the agent or employee of Thimble, the insurer or their affiliates, or having authority to bind any policy or contract of insurance procured through Thimble;
b. Alter or waive the terms or rates of any policy or contract of insurance procured through Thimble;
c. Collect any premiums or any other amounts due under the Policies;
d. Waive a forfeiture;
e. Cancel Policies flat or waive any premium payment due from the insured unless authorized in advance in writing by Thimble;
f. Extend the time for payment of premiums or other monies due Insurer(s) or extend credit to the insured;
g. Submit an application which back-dates coverage;
h. Distribute blank Policy forms or use Policy forms not approved by the Insurer(s);
i. Amend the form or language of any Policy or application form;
j. Institute, prosecute, or maintain any legal proceedings in connection with any matter pertaining to the business of Thimble, the Insurer(s) or any Policies;
k. Hold itself out as an agent or employee of Thimble or the Insurer(s) in any manner or purpose;
l. Make any representation, pledge the credit of, or make or accept or endorse any notes, or create any obligation on behalf of Thimble or the Insurer(s) that is not consistent with the Policies; or
m. Permit an employee of Company to serve on the board of directors of Thimble or the Insurer(s).
V. ADVERTISING
1. Company is responsible for compliance with all statutory and regulatory authority governing the sale, solicitation and negotiation of insurance policies including, but not limited to, Company advertising and/or marketing involving or in relation to Thimble, the Insurer(s) or the Policies. Company will maintain a record of all advertising and/or marketing materials involving or in relation to Thimble, the Insurer(s) or the Policies.
2. Company is responsible for all expenses incurred in connection with the Policies, including expenses arising out of Company's advertising or marketing efforts. Thimble and the Insurer(s) shall not bear any part of the costs or expenses associated with or arising out of Company’s advertising or marketing efforts.
VI. PRIVACY
1. Company shall comply with the rules and policies of Thimble and the Insurer(s) with regard to maintaining the privacy of all non-public, personal information of applicants, customers, policyowners, and beneficiaries and any other confidential information as specified in such rules and policies. In addition, Company shall comply with all applicable laws and regulations with regard to maintaining the privacy of all non-public, personal information of applicants, customers, policyowners and beneficiaries.
VII. FEES
1. As full compensation for Company's services in connection with the Policies produced under this Agreement and subject to the documentation requirements in this Section VII.(6), Thimble will pay to Company a commission for each Customer who purchases a policy through the Thimble Platform and utilizes the Referral Medium (each, a “Referral”). The commission shall be a percentage of the collected premium, net of fees and taxes, received by Thimble at the rate of 10% of premiums, provided Company: (a) is at all times properly licensed in their domiciled state and under the applicable laws of any state in which business is transacted as contemplated by this Agreement; (b) has paid all amounts due and owing to Thimble, if any such amounts are to be paid through Company; and (c) complies with all terms and conditions of this Agreement and all applicable laws and regulations.
2. Company will not be paid Fees for any Customers who are located in states that prohibit referral payments, as described herein, as a matter of law.
3. Any Customer who has already registered for the Thimble platform will not count as a Referral.
4. Company acknowledges and agrees that Thimble may unilaterally change the commission rates set forth above at any time, and that Thimble may accordingly modify Company’s commission structure prospectively in accordance therewith upon thirty (30) days’ notice.
5. Company agrees to promptly return to Thimble all commissions at the same rate as paid to Company on all return premiums including those resulting from Policy cancellations (regardless of whether such cancellation or modification is instituted by the insurance company, the insured, a premium finance entity or by any other person or entity). If Company charges the insured a producer fee where permitted by law in addition to the compensation due Company under this Agreement, Company agrees to comply with all applicable laws with respect thereto.
6. Company shall be responsible for all taxes, charges, and assessments on amounts received by Company as commissions under this Agreement. Company shall not charge Thimble for any fees or costs that are not contained or contemplated in this Agreement.
7. Thimble shall produce and provide to Company, at least on a monthly basis within thirty (30) days after the end of each calendar month, an accounting statement, which includes direct written premiums, commissions, surcharges and taxes paid on the Policies. Thimble shall pay to the Company along with each accounting statement any compensation due to the Company in accordance with this Agreement as reflected in such accounting statement. If Thimble owes Company less than $50.00 (Fifty Dollars) in Fees, then the amount owed will be accrued until the calendar month in which the balance of Fees due to Company exceeds $50.00 (Fifty Dollars).
8. No commissions shall be payable until Thimble has received from Company all documents and information necessary. The necessary documents include a Form W-9 (if commissions exceed the IRS threshold in which case Thimble shall reach out to the Company with the requisite W-9 Form), and this executed Agreement.
9. If this agreement is terminated pursuant to Sections VIII, payment of all commissions will cease upon termination of this Agreement.
10. Company agrees to accept full responsibility for ensuring that monthly commission payments are accurate, and for notifying Thimble promptly of errors in monthly commission payments. In the event that Thimble for any reason fails to pay or underpays a monthly commission owed to Company, Company must notify Thimble within six (6) months of the date of the non-payment or underpayment by Thimble. If Company does not do so, Company forfeits any and all rights and remedies to recover from Thimble for a non-payment or underpayment of a monthly commission, whether in contract, tort or equity. Neither party shall be subject to penalties or interest in connection with a non-payment, underpayment or overpayment of monthly commission.
VIII. TERMINATION
1. Each Party may terminate this Agreement for any reason by giving the other Party written notice thereof at least thirty (30) days prior to the effective date of such termination.
2. Thimble may, at its sole discretion, immediately terminate this Agreement without notice as of the date any one or more of the foregoing circumstances occur: if Company: (i) breaches this Agreement; (ii) commits any act of fraud, misfeasance or malfeasance as determined solely by Thimble in its sole discretion; (iii) violates any applicable laws or regulations; (iv) has its licenses suspended or revoked, or incurs other disciplinary action by the appropriate regulatory authorities; (v) is unable to obtain a renewal of a necessary license; (vi) files a petition in bankruptcy, is the subject of an involuntary procedure in bankruptcy, admits insolvency or seeks to avoid or restructure its financial obligations; (vii) undergoes dissolution of a corporate or partnership form; (viii) dies; (ix) or if Thimble ceases to be an appointed producer with the Insurer(s).
3. Termination of this Agreement shall not affect the accrued rights, duties, obligations, or responsibilities of the Parties hereunder with respect to the matters arising prior to such termination.
4. Nothing contained herein shall affect or limit in any way the rights of any Insurer with respect to the Policies.
5. Upon any termination of this Agreement: (a) Thimble will pay to Company any and all undisputed payments due and owing arising from this Agreement prior to the effective date of termination; (b) each Party will return or destroy the Confidential Information of the other Party; (c) each Party will immediately cease all use of the other party’s intellectual property; and (d) each Party will delete all references to the other Party on their website(s) and mobile applications. Company shall own the expirations of the Policies, provided however, that nothing contained herein shall affect or limit in any way the rights of any Insurer with respect to the Policies.
IX. WORK PRODUCT; OWNERSHIP
1. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively, the "Work Product") developed in whole or in part by Company in connection with the services provided under this Agreement are hereby assigned to Thimble, and shall be the exclusive property of Thimble. Upon request, Company shall sign all documents necessary to confirm or perfect the exclusive ownership by Thimble to the Work Product.
2. Notwithstanding anything to the contrary contained herein, Thimble has and will retain all ownership and intellectual property rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and Content and all copies, modifications and derivative works thereof.
3. Thimble retains all rights not expressly granted in this Agreement.
4. Materials provided by Thimble may include trade secrets as defined by applicable state or federal laws and all such materials must be returned immediately to Thimble on termination of this Agreement or at Thimble’s earlier request. All marketing materials and forms (including policy forms) are and shall remain the sole property of Thimble. Except for the purposes set forth herein, the Company shall not broadcast, publish, display on its website, distribute or otherwise make available any advertisements, marketing materials, trademarks, tradenames, or other written, electronic or other forms of information referring to or regarding Thimble or its affiliates (including, without limitation, screens from Thimble’s or its affiliates' websites) without the prior written approval of Thimble.
5. Thimble and the Company each reserve to itself the right to, and the control of the use of, its names, symbols, trademarks and service marks, presently existing or hereafter established, and neither Thimble nor Company shall use the other's names, symbols, trademarks, or service marks in any advertising or promotional communication of any type or otherwise without the prior written consent of the other organization. Without limiting the generality of the previous sentence, the Company shall comply with Thimble’s guidelines with respect to usage of the Thimble Trademark, as they may be modified by Thimble from time to time.
6. Company agrees and understands that Thimble is the exclusive owner of Thimble’s Services and/or Content, and all graphic designs, icons, computer programming, and other elements incorporated therein or generated thereby, and all intellectual property rights in the foregoing. In addition, Company acknowledges that Thimble retains all ownership, right, title, interest in and to its trademarks, tradenames, service marks, inventions, copyrights, trade secrets, patents, technology, software, and know-how related to the design, function, or operation of its Services and/or Content. Company’s rights are strictly limited to the rights expressly granted in this Agreement.
X. RECORDS
1. All forms, manuals, and other supplies furnished to Company by Thimble or any Insurer shall remain the property of Thimble or Insurer, respectively, at all times, and shall be destroyed or returned to the applicable party promptly upon demand. If this Agreement is terminated or the return of the aforementioned property is otherwise requested, no further commissions shall be payable to Company until the property has been returned or proof is provided by Company that such materials were destroyed.
2. During the term of this Agreement, and for a period of three (3) years following termination for any reason (or for such longer period as may be required to satisfy any requirements under applicable laws and regulations), Thimble shall have the right to audit and inspect Company’s books and records concerning the business to which this Agreement applies. Such right of audit and inspection shall be during normal business hours upon reasonable notice to Company.
XI. CONFIDENTIALITY
1. A party (the “Receiving Party”) shall not, without the prior written consent of the other party (the “Disclosing Party”), disclose any Confidential Information (defined below) of the Disclosing Party, except to the Receiving Party’s employees or representatives who need to know such information for any reason contemplated by this Agreement (and then only to the extent that any such persons are under an obligation to maintain the confidentiality of, and to abide by the non-use provisions set forth herein with respect to, the Confidential Information), or use any Confidential Information of the Disclosing Party for any reason other than as contemplated by this Agreement.
2. The term “Confidential Information” means (whether disclosed prior to or after the date of this Agreement) any information (including any technology, know-how, patent application, trade secret, ideas, marketing plans, strategies, new products, test result, study, business plan, licenses, rates, prices, costs, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party or any affiliate of the Disclosing Party, including any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to herein; provided, however, that the term “Confidential Information” does not include information which (1) is generally available to the public currently, (2) becomes generally available to the public other than as a result of disclosure by the Receiving Party, or (3) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party (so long as such source is not bound by a duty of confidentiality (whether by agreement or otherwise) to the Disclosing Party).
3. All such Confidential Information must be returned to the Disclosing Party promptly upon termination of this Agreement or upon the Disclosing Party’s request.
4. In the event that Thimble provides Company access to Thimble’s data through a computer or other processing equipment, Company shall be responsible for maintaining the security and integrity of Thimble’s data systems. Company shall notify its employees, staff and sub-agents of the proprietary nature of Thimble’s data systems and Confidential Information (as defined herein) and the requirements of confidentiality specified herein.
XII. DISCLAIMERS; LIMITATION OF LIABILITY
1. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. ACCORDINGLY, THIMBLE (a) HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (b) DOES NOT WARRANT THAT THE THIMBLE SERVICE IS ERROR-FREE OR WILL BE SECURE.
2. COMPANY’S USE OF THE “CONTENT” (AS DEFINED IN SECTION II.(1)) IS AT ITS OWN RISK. THE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THIMBLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THIMBLE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE CONTENT WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THIMBLE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, OR SERVICES , OR OTHER MATERIAL ON OR LINKED TO THE CONTENT, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THIMBLE MAKES NO WARRANTIES THAT COMPANY’S USE OF THE CONTENT WILL NOT INFRINGE THE RIGHTS OF OTHERS AND THIMBLE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT OR ANY OTHER WEBSITE OR SERVICE.
3. IN NO EVENT WILL THIMBLE OR COMPANY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THE LIABILITY OF ANY PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, the GREATER OF (a) FEES RECEIVED BY COMPANY DURING THE MOST RECENT 12 MONTHS; OR (b) FIFTY THOUSAND DOLLARS ($50,000).
4. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY TO THE FOLLOWING: (I) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS; (II) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (III) EITHER PARTY’S MISUSE OF THE OTHER’S INTELLECTUAL PROPERTY; (IV) COMPANY’S VIOLATION OF ITS OBLIGATIONS IN THE RESPONSIBILITIES OF THE PARTY’S SECTION OR VIOLATION OF APPLICABLE LAW AND/OR (V) THE WILLFUL MISCONDUCT AND/OR INTENTIONAL OR GROSSLY NEGLIGENT ACTIONS OF EITHER PARTY HEREUNDER.
XIII. INDEMNIFICATION
1. Each Party (the “Indemnifying Party”) hereby agrees to promptly defend, indemnify and hold the other Party (the “Indemnified Party”) harmless from and against any and all claims, suits, actions, liabilities, losses, expenses or damages, including, without limitation, reasonable attorney’s fees and costs of litigation, which the Indemnified Party may incur as a result of any violation or alleged violation by the Indemnifying Party of any applicable laws or regulations governing the conduct of business which is the subject of this Agreement or any loss or expense to the Indemnified Party caused by any misrepresentation, negligent act or omission, or any material breach of this Agreement by the Indemnifying Party. This indemnification provision shall survive the termination of this Agreement.
2. The Indemnified Party shall promptly notify the Indemnifying Party of any and all incidents, claims or otherwise which may be subject to indemnification pursuant to the terms of this Agreement upon becoming aware of any such incident or claim. The Indemnified Party shall provide the Indemnifying Party with complete control over the defense and settlement of the claim (provided that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission, which shall not be unreasonably withheld or delayed or conditioned). The Indemnified Party shall also provide the Indemnifying Party with assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
XIV. DISPUTE RESOLUTION
1. This Agreement will be governed by the laws of the State of New York, without regard to its choice of law rules. IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, EACH OF THE PARTIES, TO THE FULLEST EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY: (I) CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY, NEW YORK AND (II) WAIVES ANY RIGHT TO A JURY TRIAL. The waiver applies to any action or legal proceeding, whether sounding in contract, tort or otherwise. Each Party, on behalf of itself and its affiliates, also agrees not to include any employee, officer or director of the other Party or its affiliates as a party in any such action or proceeding. Any provision of this Agreement that conflicts with any applicable law or regulation will be deemed amended to the minimum extent necessary to comply with such law or regulation.
XV. MISCELLANEOUS
1. Thimble reserves the right, at its discretion, to modify this Agreement at any time by posting revised terms online. Continued access or use of the Services following such modification, shall constitute Company’s acceptance of any modifications thereto.
2. Each Party represents and warrants to the other that: (a) it is a business entity duly organized and in good standing as required under all jurisdictions where it does business; (b) its performance of this Agreement has been duly authorized by all necessary company action; and (c) this Agreement constitutes a legal, valid and binding obligation enforceable against such Party.
3. Nothing contained in this Agreement shall be construed to make the Parties partners, joint venturers, or to create the relationship of employer and employee between Company and any Insurer or between Company and Thimble. It is the express intent of the Parties that Company, at all times, is an independent contractor for all purposes and in all situations. Company shall not represent that it is an employee of any Insurer or of Thimble, nor shall it in any manner hold itself out to be an employee of any Insurer or Thimble. Company shall be free to exercise independent judgment as to the time, place, and manner of exercising the authority granted under this Agreement. Thimble shall not be responsible for any income tax withholding or Social Security withholding on any payments made to Company pursuant to this Agreement.
4. Insurer(s) and Thimble reserve the right to change their policies and procedures at any time, including without limitation changing the form of the Policies, policy limits, underwriting standards or decision to do business in any state.
5. Failure of Thimble to enforce any provision of this Agreement or to terminate it because of a breach shall not be deemed to be a waiver of such provisions or of any breach committed by Company. No breach of any provision of this Agreement can be waived unless done so in writing, executed by the waiving party. The waiver of any one breach shall not be deemed to be a waiver of any other breach of the same or any other provision of this Agreement.
6. If any clause or provision of this Agreement shall be adjudged invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it shall not affect the validity or any other clause or provision, which shall remain in full force and effect. Each of the provisions of the Agreement shall be enforceable independently of any other provision, unless expressed otherwise herein.
7. This Agreement and the obligations hereunder may not be assigned by Company without the prior written consent of Thimble. Thimble may assign this Agreement, in whole or in part, at its sole discretion.
8. This Agreement, together with the Terms of Service, constitutes the entire agreement between Thimble and Company, and supersedes and replaces any previous agreements between Thimble and Company. No oral promises or representations shall be binding, nor shall this Agreement be modified, except by agreement in writing executed by Thimble.
9. Company shall forward promptly to Thimble any legal process or notice served on Company in a suit or proceeding against Thimble or the Insurer(s), and any and all notices, complaints, inquiries or requests received by any insurance department or other governmental authority or litigant, or any other action or sanction charged against Thimble or the Insurer(s), together with any and all reasonably accessible information from Company’s records that may assist Thimble or the Insurer(s), as the case may be, in its response thereto. Company shall cooperate with and assist Thimble and the Insurer(s), as the case may be, in the resolution and investigation of such matters, where needed. Company shall not take or threaten any legal action to institute or seek any legal or equitable remedy on behalf of Thimble or the Insurer(s) without express written consent thereof.
10. Company shall promptly execute, acknowledge and deliver any additional documents or undertake any actions reasonably requested by Thimble, including any documents and actions that may be necessary for Thimble to satisfy its obligations to the Insurer(s).
11. Company acknowledges that a breach of any of the terms, conditions, or provisions of this Agreement by Company may give rise to a cause of action by Thimble against Company and/or may result in disciplinary action by Thimble, including but not limited to, the termination of this Agreement, all in the sole discretion of Thimble.
12. All notices under this Agreement shall be in writing and given by Thimble (i) via email (in each case to the address that you provide) or (ii) by posting to the Platform and/or Broker Portal. For notices made by e-mail, the date of receipt shall be deemed the date on which such notice is transmitted. Thimble may modify the terms of this Agreement or the features of the Service at any time. In the event that such modification constitutes a material change in Thimble’s sole discretion, Thimble will provide notice to Company. Company’s continued use or referral of the Services after any modification of this Agreement or of the Service will constitute acceptance of any such modifications.