HI MARLEY, INC.
AGENT ACCESS AGREEMENT
This Agency Access Agreement (“Agreement”) is a legally binding contract between you (“you” or “Agent” meaning the insurance agency or independent agent, as applicable) and Hi Marley, Inc., a Delaware Corporation (“Hi Marley”). If you are an agency, entity, organization, or company, the individual accepting this Agreement on your behalf represents and warrants that they have the authority to bind you to this Agreement and you agree to be bound by this Agreement.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE PLATFORM, YOU AGREE TO BE BOUND BY, THESE TERMS. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE PLATFORM. YOUR USE OF THE PLATFORM, AND HI MARLEY’S PROVISION OF THE PLATFORM TO YOU, CONSTITUTES AN AGREEMENT BY HI MARLEY AND BY YOU TO BE BOUND BY THESE TERMS.
1. DEFINITIONS
1.1 “Agent Interface” means the web-based administrative portal made available to Agent for managing communications on the Platform with End Users.
1.2 “Carrier” means an insurance carrier on whose behalf Agent is providing services.
1.3 “Documentation” means any documentation or information provided or made available by Hi Marley to Agent under this Agreement.
1.4 “Effective Date” means the date Agent first downloads, installs, registers for, accesses, or uses the Platform.
1.5 “End User” means a customer or prospective customer of the Carrier which uses, is sent a communication from, or otherwise interacts with the Platform.
1.6 “Hi Marley Technology” means, individually or together, the Platform, the Agent Interface, the Documentation, and any related software, technology or data provided by Hi Marley to Agent. For the avoidance of doubt, Insurance Data (as defined below) is not considered Hi Marley Technology.
1.7 “Platform” means the Hi Marley Intelligent Messaging Platform made available to Agent under this Agreement, including all backend systems, networks and processes of Hi Marley for transmitting SMS messages to End Users.
2. ELIGIBILITY
2.1 Authorization. To be eligible to use the Platform, you must be separately authorized by a Carrier that is a customer of Hi Marley to provide agent services to End Users.
2.2 Registration. Your use of the Platform may require that you register an account with Hi Marley for access to the Platform. Agent is responsible for keeping all login credentials and passwords provided to Agent secure.
3. GRANTS AND RESTRICTIONS
3.1 License and Access Rights Grant. Subject to the terms and conditions of this Agreement, Hi Marley hereby grants to Agent a limited, non-exclusive, non-sublicenseable, nontransferable, royalty-free license during the term of this Agreement to: (a) use and make available to End Users the Platform in strict accordance with this Agreement; (b) use and access the Agent Interface solely to manage and evaluate the Platform; and (c) use, copy, and reproduce Documentation as reasonable necessary to support Agent’s use of the Platform.
3.2 Restrictions. The licenses granted to Agent in this Agreement do not include any right to, and Agent will not: (a) modify, translate, or create a derivative work of any portion of the Hi Marley Technology; (b) sell, lease, loan, provide, distribute or otherwise transfer any portion of the Hi Marley Technology to any third party except for the limited right to make available the Platform to End Users as expressly set forth in Section 3.1; (c) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the source code of Hi Marley Technology; (d) display or disclose any portion of the Agent Interface to any person except to Agent’s employees, contractors or agents who are required to use the Platform; (e) remove, alter, or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Platform or Agent Interface; or (f) cause or permit any third party to do any of the foregoing.
3.3 No Warranties. Agent must not make any representation or any express or implied warranty to third parties (including, without limitation, to any End Users) on behalf of Hi Marley.
3.4 Hi Marley Policies. The Parties agree that End Users’ use of the Platform will at all times be subject to Hi Marley’s Terms of Use (available at https://www.himarley.com/terms) and Privacy Policy (available at https://www.himarley.com/privacy) (collectively, the “Hi Marley Policies”).
3.5 Feedback. If Agent provides any feedback to Hi Marley concerning the functionality and performance of any portion of the Platform (including identifying potential errors and improvements), Agent hereby assigns to Hi Marley all right, title, and interest in and to the feedback, and Hi Marley is free to use the feedback without payment or restriction.
3.6 Reservation of Rights. All rights not expressly granted in this Agreement are reserved. No additional rights whatsoever (including, without limitation, any implied licenses) are granted by implication, estoppel or otherwise.
4. SUPPORT
4.1 Support. Hi Marley will provide Agent with reasonable technical support and assistance related to the Platform during the Term. Agent is solely responsible for providing support to End Users during the Term.
5. INTELLECTUAL PROPERTY AND DATA
5.1 Intellectual Property. All right, title, and interest in and to the Hi Marley Technology, including all copyrights, patents, trademarks, trade secrets, or other intellectual property rights, are and will remain the sole and exclusive property of Hi Marley. Except for the limited licenses and rights granted in Section 3.1, nothing herein grants to Agent, or should be construed to grant to Agent, any right title or interest in or to Hi Marley Technology.
5.2 Registration Data. Any data, information, text (including name, mobile number, e-mail) provided by an End User to Hi Marley in connection with registering for the service, establishing an account with Hi Marley, or requesting services through Hi Marley, whether or not a user was directed to Hi Marley by Agent or otherwise, is and will remain the sole and exclusive property of Hi Marley (“Registration Data”). Provided, however, that the foregoing does not diminish any rights that Agent (or Carrier) may separately have or acquire in the same or similar data by virtue of Agent’s (or Carrier’s) relationship with the End User. Registration Data is maintained and used by Hi Marley in accordance with Hi Marley’s posted Privacy Policy. Hi Marley hereby grants Agent a non-exclusive, perpetual, worldwide, irrevocable license to use any Registration Data of End Users made available to Agent through the Agent Interface solely as necessary for Agent to provided services to those End Users.
5.3 Insurance Data. Subject to Section 5.2, as between Hi Marley and Agent, Agent (or the applicable Carrier) will be the exclusive owner of all text, information, communications, or other data transmitted: (i) by End Users through the Platform to Agent in response to a request for information from Agent and directly involving Agent’s business relationship with the End User; and (ii) by Agent to its End Users (“Insurance Data”). Notwithstanding the foregoing, Agent hereby grants to Hi Marley an exclusive, perpetual, worldwide, irrevocable license to use any aggregate, de-identified Insurance Data, including data concerning types of requests made by End Users, resolution of requests, and volume of requests (“Aggregate Data”), for the purpose of improving the Platform and developing new Hi Marley Technology. Any use of Aggregate Data by Hi Marley will not be identifiable to Agent or its End Users. For clarity, following the Effective Date and for as long as Hi Marley is in possession of Insurance Data, Hi Marley will not amend or modify its Privacy Policy in a way that would allow the distribution of individualized policyholder information. Upon termination of the Agreement, Hi Marley shall provide Agent with a copy of all the Insurance Data upon Agent’s request in a mutually acceptable format, and then subsequently delete Insurance Data within thirty (30) days of termination, consistent with any other legal requirements.
5.4 Data Security. Hi Marley shall maintain reasonable and appropriate technical, physical, administrative and other organizational precautions and security measures to protect against unauthorized access to and/or misuse of Registration Data and Insurance Data.
6. TERM AND TERMINATION
6.1 Term. The initial term of this Agreement will commence on the Effective Date and continue in effect until terminated (the “Term”).
6.2 Termination. Either Party may terminate this Agreement at any time upon written notice to the other party with or without cause.
6.3 Survival. Upon termination, Agent’s licenses under this Agreement will end and Agent will cease all use of the Platform and Hi Marley Technology. Sections 2, 3.2, 3.3, 3.4, 3.5, 3.6, 5.1, 5.2, 5.3, 6.3, 7.2, 7.3, 8, 9, 10, and 11 will survive any termination of this Agreement.
7. REPRESENTATIONS AND DISCLAIMERS OF WARRANTY
7.1 Representations. Each party represents and warrants to the other party that: (a) the person signing this Agreement on its behalf has all necessary power and authority to do so, and that upon such signature this Agreement is a binding obligation upon it; (b) the execution and delivery of this Agreement and the transactions contemplated hereby have been duly and validly authorized by all necessary action on its part; (c) this Agreement constitutes a valid and binding obligation on the party that is enforceable in accordance with its terms; and (d) it will comply with all applicable laws in connection with the distribution and use of the Platform.
7.2 Agent Representations and Warranties Regarding Messages. Agent represents and warrants that (a) Agent will comply with all applicable laws and contracts in connection with the content and transmission of calls, texts, and other messages (“Messages”) sent using the Platform, including, without limitation, all federal and state telemarketing-related laws, rules and regulations, the Telephone Consumer Protection Act (47 U.S.C. § 227), the FCC’s implementing regulations (47 C.F.R. § 64.1200) and Canada’s Anti-Spam Law (such laws, rules and regulations, as amended from time-to-time, collectively, the “Telemarketing Laws”); (b) Agent will use the Platform only to send informational Messages that serve no sales or marketing purpose; and, (c) Agent will not use the Platform to send Messages to any individual who has indicated that he or she does not wish to be contacted by Agent or Hi Marley. Failure to comply with any provision of this Section 7.2 is a material breach of this Agreement.
7.3 DISCLAIMERS. THE PLATFORM AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE OR LICENSED BY HI MARLEY UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. HI MARLEY DISCLAIMS ALL WARRANTIES DUTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE PLATFORM AND RELATED INTELLECTUAL PROPERTY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON‑INFRINGEMENT.
8. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF THAT PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED $1,000. THE LIMITATIONS SET FORTH IN THIS AGREEMENT WILL APPLY EVEN IF ANY LIMITED REMEDY IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
9. INDEMNITY
9.1 Agent Indemnification. Agent will indemnify, defend and hold Hi Marley and its affiliates, officers, directors, suppliers, licensors, and other customers harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of: (a) Agent’s violation of any applicable law or regulation; or (b) any claim by an End User regarding Agent’s breach of a warranty, breach of contract, or failure to provide services to that End User.
9.2 Hi Marley Indemnification. Hi Marley will indemnify, defend, and hold Agent and its affiliates, officers, directors, and employees harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out (a) Hi Marley’s violation of any applicable law or regulation; (b) any claim regarding Hi Marley’s breach of contract; or, (c) any claim that Hi Marley Technology infringes the patents, trademarks, copyrights, or other intellectual property rights of a third party.
9.3 Indemnification Procedures. Each party’s indemnification obligations under this Agreement are subject to: (i) receiving prompt written notice of the existence of any indemnifiable claim (except that failure to satisfy this condition will relieve a party of its indemnification obligations only if the indemnifying party materially prejudiced in its defense of the claim); (ii) being able to, at its option and expense, control the defense of such indemnifiable claim (provided that the indemnifying party will not, without the prior written consent of the indemnified party, settle any claim or otherwise consent to the entry of any order or judgment in any claim if that settlement, order or judgment admits any liability of the indemnified party or requires the indemnified party to take or to refrain from taking any action, other than the payment of damages); (iii) permitting the indemnified party to participate in the defense of any claim, at the indemnified party’s option and expense; and (iv) receiving full cooperation of the indemnified party in the defense thereof.
10. CONFIDENTIALITY
10.1 Confidential Information. As used in this Agreement, the term “Confidential Information” means any information disclosed by either party to the other party, directly or indirectly, in writing, orally, or by inspection of tangible objects (including documents, prototypes, samples, and equipment), that is designated as “Confidential,” “Proprietary,” or some similar designation, or should reasonably be understood to be confidential. Confidential Information may also include information disclosed to the disclosing party by third parties or information disclosed prior to execution of this Agreement. Confidential Information will not, however, include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (d) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
10.2 Non-use and Nondisclosure. Each party will not use the other party’s Confidential Information for any purpose except to carry out the activities contemplated by this Agreement. Each party will not disclose the other party’s Confidential Information to third parties or to such party’s employees, except to those employees and contractors of the receiving party who are required to have the information in order to carry out the activities contemplated by this Agreement. A party may disclose the other party’s Confidential Information if required by law so long as the receiving party gives the disclosing party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure. Neither party will reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody the other party’s Confidential Information and that are provided to the party in accordance with this Agreement.
10.3 Maintenance of Confidentiality. Each party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the other party’s Confidential Information. Without limiting the foregoing, each party will take at least those measures that it takes to protect its own most highly confidential information and, prior to any disclosure of the other party’s Confidential Information to its employees or contractors, will have the employees and contractors sign a non-use and nondisclosure agreement that is substantially similar in content to this Agreement. Neither party will make any copies of the other party’s Confidential Information unless approved in writing by the other party. Each party will reproduce the other party’s proprietary rights notices on any approved copies.
11. MISCELLANEOUS
11.1 No Partnership, Joint Venture or Franchise. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.
11.2 Updates. Hi Marley may update this Agreement at any time and such update will be effective upon posting. Your continued use of the Platform will constitute your consent to the updated terms. If the update materially alters your rights under this Agreement, Hi Marley will use commercially reasonable efforts to notify you in writing in advance of the update.
11.3 Notices. All notices in connection with this Agreement will be deemed given as of the day they are received either by messenger, delivery service, or in the US mail, postage prepaid, certified or registered, return receipt requested, and addressed either to Agent or to Hi Marley at the addresses specified in this Agreement, or to such other address as a party may designate pursuant to this notice provision.
11.4 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware without reference to its choice of law rules that would result in the application of the laws of another jurisdiction. Any dispute arising from or related to this Agreement will be heard exclusively in the state or federal courts located in Delaware.
11.5 Assignability. This Agreement may not be assigned or otherwise transferred by either party, in whole or in part, without the prior written consent of the other party, except that either Party may assign this Agreement in connection with a merger, acquisition, change of control, or sale of all or substantially all of that Party’s assets or stock. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of this Section 11.5 is null and void.
11.6 Construction. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Agent under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate. Failure by a party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
11.7 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding the subject matter of this Agreement. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed.
LAST UPDATED FEBRUARY 28, 2023
