Agreement

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto, intending to be legally bound, hereby covenant and agree as follows:

THE CPE SYSTEM SHALL BE USED ONLY BY THE SUBSCRIBER AND THOSE AUTHORIZED USERS WHO ACCESS OR USE THE CPE SYSTEM THROUGH OR ON BEHALF OF THE SUBSCRIBER.  SUBSCRIBER WARRANTS AND COVENANTS THAT ANY PERSON WHO ACCESSES THE CPE SYSTEM VIA THE CONFIDENTIAL ALPHANUMERICAL ACCESS CODE ASSIGNED TO SUBSCRIBER IS DULY AUTHORIZED BY SUBSCRIBER TO USE THE CPE SYSTEM.  SUBSCRIBER IS RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ALL USERS (INCLUDING ITSELF) UNDER THIS AGREEMENT.  SUBJECT TO THE PROVISIONS OF THIS AGREEMENT, SUBSCRIBER WILL HAVE THE RIGHT TO ORDER AND RECEIVE CPE REPORTS.  THE CPE REPORTS MAY BE USED ONLY FOR SUBSCRIBER’S INTERNAL RESEARCH PURPOSES AND ON BEHALF OF SUBSCRIBER’S CLIENTS, SUBJECT TO THE FURTHER PROVISIONS OF THIS AGREEMENT.  SUBSCRIBER IS NOT PERMITTED TO MAKE DERIVATIVE WORKS OF THE CPE SYSTEM OR CPE REPORTS.  SUBSCRIBER IS SOLELY RESPONSIBLE FOR ITS USE OF THE CPE SYSTEM AND CPE REPORTS AND FOR COMPLYING WITH ALL APPLICABLE LAWS, RULES, AND REGULATIONS.  THE CPE REPORTS ARE NOT TO BE CONSTRUED AS INVESTMENT ADVICE, TAX ADVICE, INSURANCE ADVICE, OR ANY OTHER TYPE OF ADVICE.  THE CPE SYSTEM DOES NOT ACT AS AN INSURANCE UNDERWRITER, BROKER, AGENT, OR GUARANTOR WITH RESPECT TO ANY TRANSACTION OR INSURANCE PRODUCT. 

1.     Definitions.

1.1.  Authorized User.  “Authorized User” means an individual SUBSCRIBER employee who has been authorized by the SUBSCRIBER and approved by TIA to use the CPE System under SUBSCRIBER’s license.  Only the authorized employees of SUBSCRIBER who have been approved by TIA will qualify as Authorized Users hereunder.  TIA will assign each Authorized User an individual user identification code.

1.2.  Confidential Information.  “Confidential Information” means nonpublic information or materials which a party to this Agreement (the “Disclosing Party”) designates as being confidential to the party that receives such information (the “Receiving Party”) or which, under the circumstances surrounding disclosure, ought reasonably to be treated as confidential by the Receiving Party.  For purposes of this Agreement, “Confidential Information” includes any and all information relating to TIA, its subsidiaries and affiliates, and their respective businesses and Intellectual Property, including, but not limited to, all information relating to the design, operation, security, and use of the CPE System, and the generation of CPE Reports, in whatever form such information is provided, whether oral, written, visual, machine‑readable, electronic, or otherwise, and whether or not patentable or protectable by copyright, patent, trademark or trade secret.  “Confidential Information” may also include, but is not limited to, web site content, drawings, designs, diagrams, schematics, flowcharts, models, applications, methodologies, processes, formulae, algorithms, computer programs, software in various stages of development, data, technical information, research, know‑how, forecasts, strategies, ideas, inventions, discoveries, patents, patent applications, product development plans, demonstrations, marketing techniques, price lists, pricing policies, cost data, customer and vendor lists, business and financial information, and all manifestations or embodiments relating to the foregoing, and all improvements made thereto, as well as any other information relating to the business of TIA which may be divulged in the course of its performance of this Agreement.

1.3.  CPE System.  “CPE System” means TIA’s proprietary Confidential Policy Evaluator (CPE) system, which provides objective, rules‑based evaluations of life insurance policies based on product information available at the time of report preparation. 

1.4.  CPE Report.  “CPE Report” means the confidential report prepared through utilization of the CPE System based on insurance policy illustration and product information available at the time of report preparation.  The form and content of the CPE Report may be altered from time to time at the sole discretion of TIA.

1.5.  Intellectual Property.  “Intellectual Property” means any and all inventions and technologies (whether or not protected under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), moral rights, mask works, trademarks, trade names, Internet domain names, trade dress, trade secrets, know‑how, ideas (whether or not protected under trade secret laws), and all other subject matter protected under patent, copyright, moral right, mask work, trademark, trade secret, or other laws, including without limitation all new or useful art, combinations, discoveries, formulae, documentation, business methods, web sites, techniques, technical developments, artwork, software, programming, applets, scripts, and designs.

1.6.  TIA Trademarks.  “TIA Trademarks” means all of TIA’s trademarks, service marks, designs, markings, logos, taglines, and trade names, including, but not limited to, THEINSURANCEADVISOR, INSURANCE BANKING, CPE, CPE REPORT,  THEINSURANCEADVISOR.COM, CONFIDENTIAL POLICY EVALUATOR, UNLOCKING THE BLACK BOX, and MARKET ACCESS + MARKET INTELLIGENCE = SUPERIOR RESULTS.

2.     License Grant.

2.1.  Grant of License.  Subject to all of the terms and conditions of this Agreement, TIA grants to SUBSCRIBER a limited, non‑transferable, nonexclusive license to use, solely in the manner authorized by this Agreement, the CPE System, as such system may be modified from time to time by TIA or its authorized representatives.  In addition, all use of the CPE System shall be governed by such user manuals and/or instruction guides as provided by TIA, which may be supplemented or modified from time to time by TIA.  The CPE System is licensed and not sold. 

2.2.  Restrictions on Use.

(a)    SUBSCRIBER agrees that it shall not use or permit the CPE System or CPE Reports to be used in any manner, whether directly or indirectly, that does not comply fully with the restrictions specified in this Agreement.

(b)    The CPE System and CPE Reports shall be used solely for the internal research purposes of SUBSCRIBER and for the benefit of its Clients, subject to the further provisions of this Agreement. 

(c)    One copy of the CPE Report may be provided to SUBSCRIBER’s Client, subject to the following conditions:  (i) the CPE Report is provided in connection with, and relates to, independent insurance advice provided by an Authorized User that is not derived from the CPE Report; (ii) the quantity and value of such independent insurance advice predominates over the quantity and value of the CPE Report distributed to such Client; (iii) the CPE Report distributed to such Client relates directly to specific insurance and/or investments, goals, needs or interests of such Client; and (iv) no CPE Report or any portion thereof is used as part of a general mailing or other distribution to more than one Client, and no substantially identical CPE Report or any portion thereof is distributed to multiple Clients.  The use and distribution of any CPE Report that does not meet all of the conditions enumerated above in clauses (i) through (iv) will require the express prior written consent of TIA and the payment of additional fees or royalties as determined in TIA’s sole discretion.

(d)   No other rights are granted to SUBSCRIBER by this Agreement, and all rights not specifically granted to SUBSCRIBER herein are reserved by TIA. 

2.3.  Prohibited Uses.  Except as expressly provided herein, or by separate written agreement, SUBSCRIBER shall not:

(a)    in any way sell, lease, sublicense, distribute, transmit, or otherwise transfer or disclose any part of the CPE System or CPE Reports or any right granted to SUBSCRIBER hereunder to any third party;

(b)    copy or disclose, or permit to be copied or disclosed, any CPE Report;

(c)    modify, alter, adapt, or make derivative works of any part of the CPE System or CPE Reports, except with TIA’s prior written consent;

(d)   modify, disable, or circumvent any part of the CPE System serving a security, reporting, or accounting function;

(e)    decompile, disassemble, or reverse engineer the CPE System or any part thereof or attempt any such decompilation, disassembly, or reverse engineering; or

(f)     permit third parties to benefit from the use or functionality of the CPE System or CPE Reports via a time‑sharing, service bureau, or other similar arrangement.

2.4.  Limitations on Access.  SUBSCRIBER acknowledges that the CPE System is comprised of, among other things, proprietary software, computer programs, algorithms, data, databases, analyses, reports, spreadsheets, graphs, charts, manuals, format and organization of information furnished by users, format and organization of information output by the CPE System (including CPE Reports), and other Intellectual Property of TIA and its affiliates.  It is expressly agreed and understood that SUBSCRIBER will not have direct access to certain aspects of the CPE System, including software code of any kind.  SUBSCRIBER’s use of the CPE System will be governed by such instruction sheets and user manuals as TIA may provide and modify from time to time. 

2.5.  Indemnification by Licensee.  SUBSCRIBER agrees to indemnify and hold TIA, its officers, directors, shareholders, affiliates, licensors, suppliers, employees, agents, representatives, insurers, attorneys, successors and assigns harmless from and against all losses, damages or expenses of whatever form or nature, including attorneys' fees and other costs of legal defense, whether direct or indirect, which they, or any of them, may sustain or incur as a result of any acts or omissions of SUBSCRIBER or any of its directors, officers, members, partners, affiliates, employees, representatives, or agents, including, but not limited to (a) breach of or failure to perform any obligation, provision or condition of SUBSCRIBER contained in any of the provisions of this Agreement; (b) any negligent act or omission or intentional misconduct; (c) failure of SUBSCRIBER to pay when due all taxes, assessments, levies or charges from any sources which may be assessed or levied against SUBSCRIBER or its use of the CPE System or CPE Reports, including, without limitation, any tax in the nature of an excise tax, sales tax, value‑added tax, health or other social welfare tax or charge, import duty, customs duty, or import licensing fee or charge; (d) violation by SUBSCRIBER of any applicable law, regulation or order; or (e) any misappropriation or misuse by SUBSCRIBER of the CPE System, CPE Reports, or other Intellectual Property or Confidential Information of TIA.

2.6.  Compliance with NASD Regulations.  The CPE Report has been designed to comply with applicable NASD regulations regarding advertising and sales material.  However, SUBSCRIBER is solely responsible for obtaining NASD approval of CPE Report(s) to the extent necessary.  The foregoing states the totality of TIA’s obligations with respect to NASD compliance, and TIA expressly disclaims any and all representations, warranties and liability associated with the foregoing. 

2.7.  Marketing Practices.  SUBSCRIBER will (i) conduct business in a manner that reflects favorably at all times on the CPE System and the good name, goodwill, and reputation of TIA; (ii) avoid deceptive, misleading, or unethical practices that are or might be detrimental to TIA, the CPE System, or the public, including but not limited to disparagement of TIA or the CPE System; (iii) make no false or misleading statement with respect to the CPE System; and (iv) make no representations or warranties with respect to the CPE System.

3.     Satisfaction Guarantee.

If, after satisfying all requirements of the “Trial Period” which are set forth on the TIA website on the date on which SUBSCRIBER electronically enters into this Agreement, SUBSCRIBER is not completely satisfied with the results of SUBSCRIBER’s use of the CPE System, SUBSCRIBER may request a full refund of, and TIA will promptly remit a check in an amount equal to, all License Fees paid by SUBSCRIBER during the Trial Period.  While SUBSCRIBER may request a full refund of the Trial Period License Fees for any reason, the request must be in writing, and must include the reasons why SUBSCRIBER was not completely satisfied.  This Agreement and the license granted hereunder terminates immediately upon the receipt of such letter, in accordance with the terms and provisions of Section 8 of this Agreement, and this Satisfaction Guarantee is available for only one Initial Term for each SUBSCRIBER.  If SUBSCRIBER does not terminate this Agreement during the Trial Period as set forth herein, then this Agreement shall remain in effect and SUBSCRIBER shall be obligated to pay the monthly License Fees for the balance of the Initial Term, unless this Agreement is earlier terminated in accordance with the terms and provisions of Section 8.

4.     License Fees and Report Fees.

In exchange for the rights granted hereunder, SUBSCRIBER shall pay to TIA the initial monthly License Fee in the amount specified on the TIA website on the date on which SUBSCRIBER electronically enters into this Agreement, and thereafter SUBSCRIBER shall continue to pay the same License Fee each month (subject to change as provided below) as a condition to continued use of the CPE System.  License Fees charged to SUBSCRIBER are payable regardless of SUBSCRIBER’s actual usage of the CPE System, unless this Agreement is terminated in accordance with its provisions as a result of a material breach by TIA or unless the License Fee is refunded under the Satisfaction Guarantee set forth in Section 3 of this Agreement.  Unless other arrangements are mutually agreed to by and between TIA and SUBSCRIBER in writing, the second and each subsequent monthly installment of the License Fee will be automatically charged by TIA on or about the first day of each calendar month during the Term of this Agreement to the credit card account to which SUBSCRIBER charged the initial monthly License Fee, and SUBSCRIBER hereby authorizes TIA to charge such credit card account for the License Fees payable during the Term hereof without obtaining the signature of SUBSCRIBER or SUBSCRIBER’s physical credit card.

In addition to the monthly License Fee, SUBSCRIBER shall pay a fee for each CPE Report (the “Report Fee”) in an amount determined in accordance with the schedule set forth on the TIA website on the date on which SUBSCRIBER electronically enters into this Agreement (subject to change as provided below). The Report Fees for all CPE Reports ordered by SUBSCRIBER during a calendar month shall be paid by SUBSCRIBER with the monthly License Fee for the subsequent calendar month, and shall be charged to SUBSCRIBER’s credit card in the manner provided in the preceding paragraph (or paid via such alternate payment arrangements as may be agreed to in writing by and between TIA and SUBSCRIBER), and SUBSCRIBER hereby authorizes such credit card charges.

TIA may change the amount of the monthly License Fee and the Report Fee at any time and from time to time during the Term by giving notice to SUBSCRIBER via e-mail at least ten (10) days prior to the effective date of the change.

5.     Disclaimer of Warranties.

THE CPE SYSTEM AND CPE REPORTS (COLLECTIVELY, THE “PRODUCTS”) ARE PROVIDED TO SUBSCRIBER AND ALL AUTHORIZED USERS ON AN “AS IS” BASIS, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND.  TIA EXPRESSLY DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, TITLE/NON‑INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  TIA DOES NOT WARRANT THAT THE PRODUCTS WILL MEET THE REQUIREMENTS OF SUBSCRIBER OR THOSE OF ITS END USERS OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR‑FREE OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED.  NEITHER TIA NOR ITS CONTENT PROVIDERS WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, COMPLETENESS, TIMELINESS, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, OR OTHERWISE.  THE ENTIRE RISK AS TO SATISFACTORY QUALITY, RELIABILITY, PERFORMANCE, AND ACCURACY IS BORNE BY THE USER.  CPE REPORTS SPEAK AS OF THE DATE OF PRODUCTION AND TIA DOES NOT UNDERTAKE TO ADVISE SUBSCRIBER OR THE END USER OF ANY CHANGE IN INFORMATION OR VIEWS CONTAINED THEREIN.  SUBSCRIBER SHALL MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ON BEHALF OF TIA. 

PAST PERFORMANCE DOES NOT GUARANTEE FUTURE RESULTS.  TIA SHALL NOT BE CONSIDERED AN “EXPERT” UNDER THE SECURITIES ACT OF 1933, AS AMENDED.  ANY REPORT OR RESEARCH PROVIDED SHOULD NOT BE CONSTRUED AS A SOLICITATION, ENDORSEMENT OR RECOMMENDATION TO BUY OR SELL A SECURITY.  THE INFORMATION CONTAINED IN THE PRODUCTS SHOULD NOT BE CONSTRUED AS INVESTMENT ADVICE, TAX ADVICE, INSURANCE ADVICE, OR ANY OTHER TYPE OF ADVICE.  IT IS FOR YOUR INFORMATION AND EDUCATION ONLY.  TIA DOES NOT REPRESENT OR WARRANT THAT ANY PRODUCT COMPLIES WITH THE SECURITIES LAWS OF ANY JURISDICTION OR WITH THE REQUIREMENTS OF THE NATIONAL ASSOCIATION OF SECURITIES DEALERS.

THE END USER WILL HAVE SOLE AND COMPLETE RESPONSIBILITY FOR ANY DECISIONS MADE OR ACTIONS TAKEN IN RELIANCE UPON THE PRODUCTS AND ANY RESULTS OR DATA OBTAINED THEREFROM.  THE PRODUCTS ARE NOT DESIGNED OR INTENDED TO REPLACE THE END USER’S SKILL AND JUDGMENT IN THE PERFORMANCE OF ITS PROFESSIONAL ACTIVITIES.  THE END USER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL FOREIGN, FEDERAL, STATE, AND LOCAL LAWS, RULES, AND REGULATIONS, AND THE RULES AND REGULATIONS OF ANY SELF‑REGULATORY ORGANIZATION OF WHICH END USER IS A MEMBER.

6.     Limitation of Liability. 

IN NO EVENT SHALL TIA BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY INCLUDING THE END USERS FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, OR THE INADEQUACY OF THE LICENSED PRODUCT OR DOCUMENTATION FOR ANY PURPOSE) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR WITH THE USE OF OR INABILITY TO USE THE LICENSED PRODUCT AND OTHER DELIVERABLES FOR ANY PURPOSE, OR FOR ANY CLAIM BY ANY THIRD PARTY, EVEN IF TIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE TOTAL LIABILITY OF TIA TO SUBSCRIBER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES THAT CAN BE PROVEN, AND SHALL NOT EXCEED TEN PERCENT (10%) OF THE AMOUNT ACTUALLY PAID BY SUBSCRIBER TO TIA UNDER THIS AGREEMENT.  THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF ALL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.  THIS PARAGRAPH SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

7.     Proprietary Rights.

7.1.  Proprietary Markings. 

(a)    SUBSCRIBER agrees not to remove, destroy, modify, or obscure any proprietary markings or proprietary legends or any disclaimers placed upon or contained within the CPE System, the CPE Reports, or any other materials provided by TIA or its affiliates.  The products, technologies, and materials of TIA contain material that is or may be protected by United States copyright law, patent law, and trade secret law, and by international treaty provisions. SUBSCRIBER further agrees to include the appropriate patent number and patent markings, as directed by TIA, in conjunction with every use of or reference to the CPE System or CPE technology, including on the web site of SUBSCRIBER.

(b)    Each copy of the CPE Report distributed to a Client shall bear a notice in substantially the following form, or such other form as TIA may provide from time to time: 

© 2003 TheInsuranceAdvisor Holdings, Inc.  All Rights Reserved.  The information, data, and analyses contained herein (1) include the confidential and proprietary information of TheInsuranceAdvisor Holdings, Inc., (2) may not be copied or redistributed, (3) do not constitute investment or insurance advice, (4) are provided solely for informational purposes, and (5) are not warranted to be correct, complete, or accurate.  TheInsuranceAdvisor Holdings, Inc. shall not be responsible for any decisions, uses, damages or losses resulting from, or related to, the information, data, or analyses contained in this report.

7.2.  Protection of Proprietary Rights.  SUBSCRIBER agrees to cooperate with and assist TIA, at TIA’s expense, in the protection of trademarks, patents or copyrights owned or licensed by TIA and shall inform TIA immediately of any infringement or other improper action with respect to such trademarks, patents or copyrights that shall come to the attention of SUBSCRIBER.  All Intellectual Property rights in the CPE System and CPE Reports are and shall remain the sole and exclusive property of TIA.  SUBSCRIBER acknowledges and agrees that the CPE System and all related Intellectual Property constitute the valuable trade secrets of TIA.  SUBSCRIBER acknowledges and agrees that the CPE System contains the valuable copyrighted and proprietary material of TIA or its content providers, and that certain aspects of the CPE System are protected by U.S. patent.  All CPE Reports, as well as all support materials, are protected by copyright law and international treaties. 

7.3.  Right to Use Trademarks.  During the Term of this Agreement, SUBSCRIBER is authorized by TIA to use the TIA Trademarks solely in connection with the marketing and promotion of the CPE System in accordance with this Agreement.  Use of any TIA Trademark by SUBSCRIBER will be allowed only in accordance with TIA’s trademark policies in effect from time to time, including the trademark usage guidelines set forth in Exhibit A hereto.  Prior to SUBSCRIBER’s use of any TIA Trademark, SUBSCRIBER shall submit to TIA for its review and prior approval a copy of any materials prepared by or for SUBSCRIBER which contain any TIA Trademark.  SUBSCRIBER agrees to cooperate with TIA in facilitating TIA’s monitoring and control of the nature and quality of SUBSCRIBER’s use of the TIA Trademarks.  SUBSCRIBER agrees not to attach any additional trademarks, logos, or designations to the CPE Reports or other materials provided by TIA.  SUBSCRIBER further agrees not to affix any TIA Trademark to products other than the CPE Reports, unless otherwise agreed by TIA.  TIA makes no representation or warranty that the use of the TIA Trademarks will not infringe upon the rights of others.  All resulting use of any of the TIA Trademarks shall inure solely to the benefit of TIA.  The TIA Trademarks, and all goodwill associated therewith or accruing thereto as a result of the use of the TIA Trademarks by SUBSCRIBER or otherwise, are and shall remain assets solely of TIA, and SUBSCRIBER hereby assigns to TIA any and all rights which SUBSCRIBER may now or hereafter otherwise have with regard to the TIA Trademarks and the goodwill associated therewith.  Except as expressly permitted hereunder, SUBSCRIBER will make no use of TIA’s Intellectual Property or the TIA Trademarks.

7.4.  SUBSCRIBER Trademarks.  SUBSCRIBER grants to TIA the right to include the trademarks, trade names, and logos of SUBSCRIBER on the TIA web site and in TIA marketing materials, such that SUBSCRIBER will be identified as a customer of TIA. 

7.5.  Data Rights. TIA is and shall remain the owner of all raw and aggregated data, including any compilations and analyses thereof, resulting from the utilization of the CPE System.  TIA agrees that it will not disclose to any third party any information that would identify a particular insured or prospect or his or her health information, occupation, avocations, personal characteristics, or any other personal information of such individual.

7.6.  Confidential Information. 

(a)    Each party shall hold the Confidential Information of the other party in strict confidence and shall not use or disclose the same except to its employees and agents on a need‑to‑know basis provided such employees and agents have agreed to be obligated to the same extent as such party to protect the Confidential Information.

(b)    TIA acknowledges that in the course of producing CPE Reports under this Agreement, TIA may become privy to information which SUBSCRIBER considers confidential and proprietary to its business or Clients, including, but not limited to, information concerning the identities of Clients and other related data.  TIA will take all reasonable measures to safeguard such information; provided, however, that TIA’s obligations will not extend to any information that (i) is or becomes generally available to the public, (ii) was previously known to TIA, (iii) was rightfully disclosed to TIA by a third party without restriction, (iv) was independently developed or derived by TIA, or (v) is required to be disclosed pursuant to a valid subpoena or other order of a court or government agency of competent jurisdiction.

7.7.  Independent Covenants.  Each restrictive covenant on the part of either party set forth in this Agreement shall be construed as a covenant independent of any other covenant or provision of this Agreement or any other agreement which TIA and SUBSCRIBER may have, fully performed and not executory, and the existence of any claim or cause of action by such party against the other party, whether predicated upon another covenant or provision of this Agreement or otherwise, shall not constitute a defense to the enforcement by the other party of any other covenant.

7.8.  Remedies for Violation.  SUBSCRIBER acknowledges and agrees that any breach of the provisions of this Agreement may give rise to irreparable injury to TIA which cannot be adequately compensated with monetary damages. SUBSCRIBER further agrees that TIA may seek and obtain injunctive relief against the breach or threatened breach of any of the provisions of this Agreement and/or specific enforcement of such provisions in addition to any other legal or equitable remedies which may be available. 

8.     Term and Termination.

8.1.  Term.  The initial term of this License is twelve (12) months commencing on the date on which SUBSCRIBER electronically enters into this Agreement (the “Initial Term”), and shall continue after the expiration of the Initial Term as long as SUBSCRIBER continues to pay the monthly License Fee, or until the Agreement is terminated as provided herein (the Initial Term and any continuation thereof are collectively referred to herein as the “Term”). TIA may terminate this Agreement at any time with or without cause and without prior notice.

8.2.  Termination for Breach. 

(a)    Either party may terminate this Agreement by giving the other party written notice of such termination upon the occurrence of the following event:  the other party materially breaches or defaults in any of the terms or conditions of this Agreement and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof. 

(b)    This Agreement may be terminated immediately without liability by TIA in the event that TIA has reasonable grounds to believe that its Intellectual Property has been misappropriated, that unauthorized copies of the CPE Reports have been made or distributed, that unauthorized access to the CPE System has been made or attempted, or that SUBSCRIBER has breached its duty of confidentiality with respect to TIA’s Confidential Information.

(c)    Notwithstanding any other provision herein, TIA may, without breach or liability, immediately suspend any provision of services, in whole or in part, and/or deny access to the CPE System in the event timely payment of any License Fee or other amount is past due, such suspension to be lifted promptly upon TIA being brought current in payment.

8.3.  Termination for Insolvency.  This Agreement may be terminated immediately by either party in the event (i) the other party makes any assignment for the benefit of creditors, is insolvent or unable to pay its debts as they mature in the ordinary course of business, or (ii) any proceedings are instituted by or against the other party in bankruptcy or under any insolvency laws or for reorganization, receivership or dissolution. 

8.4.  Effect of Termination.  Upon the expiration or termination of this Agreement:

(a)    SUBSCRIBER shall immediately discontinue all use of the CPE System and discontinue any representation that SUBSCRIBER has any license or right to use the CPE System;

(b)    SUBSCRIBER shall return, or at TIA’s option destroy, all copies of CPE System user manuals, instruction guides, training materials, documentation, and advertising or promotional materials;

(c)    All amounts owing by SUBSCRIBER shall become immediately due and payable; and

(d)   SUBSCRIBER shall remove and not thereafter use any advertisements or other materials that contain any TIA Trademark.

9.     Miscellaneous.

9.1.  Training.  On site training in the use of the CPE System and CPE Reports is available to designated representatives of SUBSCRIBER for a fee of $2,000.00 per day, plus reimbursement of all reasonable travel expenses (including transportation, lodging, and meals) and room reservation/rental fees. 

9.2.  Third Party Materials.  The CPE System requires certain data pertaining to a) the financial strength and claims‑paying ability of the insurers underwriting products evaluated by the CPE System b) the performance of invested assets underlying cash values of policies evaluated by the CPE System.  Thus, SUBSCRIBER must either separately license such data, or obtain such data directly from the insurer of the product being evaluated, or obtain such data from sources considered to be in the public domain.  SUBSCRIBER may use data from any sources provided use of third‑party data requires prior written approval of TIA.  In any case, SUBSCRIBER will abide by the licensing requirements of all data sources, and indemnify and hold harmless TIA from and against all claims, actions, losses, and liabilities arising in connection with the use of any third‑party data.

9.3.  Representations.  Each party represents and warrants to the other party as follows:

(a)    That such party has full power and authority to enter into this Agreement and perform the obligations hereunder;

(b)    That the execution, delivery and performance of this Agreement by such party and the implementation of the transactions contemplated hereunder have been duly approved and authorized by all requisite corporate action of such party;

(c)    That this Agreement constitutes a valid and legally binding obligation of such party enforceable against it in accordance with its terms; and

(d)   That this Agreement has been duly executed by an authorized officer of such party.

9.4.  Notices.  Any notices required or permitted under this Agreement to be given to TIA shall be deemed given five (5) days after the deposit with the U.S. Postal Service as certified mail, return receipt requested, postage prepaid; or the next delivery day for overnight courier service with written acknowledgment of receipt.  All notices to TIA shall be addressed as follows (or as subsequently updated in writing to SUBSCRIBER):

TIA:

TheInsuranceAdvisor.com, Inc. dba Veralytic , Inc.

1301 W. Fletcher Avenue

Tampa, Florida 33612

Attention:  Geri Sobczak

With a copy (which shall not constitute notice) to:

Foley & Lardner LLP

100 North Tampa Street, Suite 2700

Tampa, Florida 33602

Attention:  Randolph J. Wolfe, Esq.

All notices required or permitted under this Agreement to be given to SUBSCRIBER shall be deemed given (a) immediately upon transmittal by TIA if sent via e-mail to the e-mail address provided by SUBSCRIBER, (b) five (5) days after the deposit with the U.S. Postal Service if sent via certified mail, return receipt requested, postage prepaid to the address provided by SUBSCRIBER, or (c) the next delivery day if sent via overnight courier service with written acknowledgment of receipt to the address provided by SUBSCRIBER.  SUBSCRIBER may update its e-mail or physical address for notices by giving written notice of such update to TIA in the manner provided herein.

9.5.      Assignment.  This Agreement will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.  This Agreement shall not be assignable or transferable by SUBSCRIBER in whole or in part, by operation of law or otherwise, without the prior written consent of TIA.

9.6.      Compliance With Laws and Regulations.  In exercising their rights under this Agreement, both parties agree to comply strictly and fully with all applicable laws and regulations.

9.7.      Taxes.  SUBSCRIBER shall pay, defend (at TIA’s option), indemnify and hold TIA harmless from any sales, use, excise, import, export, value‑added or similar tax or duty, customs and similar fees, license and permit fees, and any other tax, including any penalties and interest, which may be imposed or incurred with respect to the use by SUBSCRIBER of products and services provided hereunder.  Under no circumstances will TIA be responsible for SUBSCRIBER’s income tax, franchise tax, or similar tax liability.

9.8.      Payments.  Unless charged to SUBSCRIBER’s credit card as provided in Section 4 hereinabove, all License Fees, Report Fees or other payments due from SUBSCRIBER hereunder shall be payable within 10 days of the first day of the calendar month to which they relate (i.e., in advance for the License Fees and in arrears for the Report Fees).  Fees and other payments not received within 10 days of their due date will be subject to a finance charge equal to the lesser of one and one‑half percent (1.5%) per month or the legal maximum rate on any past due unpaid balances.  All payments shall be made in U.S. Dollars, receipt of which is considered acceptance of the term and conditions of this License. 

9.9.      Force Majeure.  Neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation under this Agreement (other than the payment of money) where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party.  Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, acts of war or civil disruption, acts of God or the public enemy, U.S. or foreign governmental actions or regulations, labor shortages or strikes, Internet slowdowns or unavailability, communications or utility interruption or failure, default of subcontractors or suppliers, and failure of third‑party software.

9.10.    Entire Agreement.  This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof.  No addition to or modification of any provision of this Agreement shall be binding unless made by a written instrument signed by a duly authorized representative of each party.  The headings and clauses of this Agreement appear for ease of reference only and shall not affect the interpretation or effect of this Agreement.

9.11.    Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, such provision will be reformed only to the extent necessary and in such a manner to effect the original intention of the parties; all remaining provisions continue in full force and effect. 

9.12.    Waiver.  No waiver by either party of strict compliance with any of the terms and conditions of this Agreement shall constitute a waiver of any subsequent failure of the other party to comply strictly with each and every term and condition hereof.

9.13.    Publicity.  Following the execution of this Agreement, TIA shall be permitted to issue press releases concerning the existence of this Agreement, which may include the name, logo, and/or trademarks of SUBSCRIBER in a manner that reflects favorably on the CPE System.  TIA may also reference SUBSCRIBER and this Agreement in its advertising, promotions, trade shows, or other marketing materials.

9.14.    Legal Relationship.  Nothing in this Agreement shall create, or be deemed to create, a formal legal partnership or the relationship of principal and agent, joint venturer, partner, or employer and employee between the parties.  SUBSCRIBER acknowledges that it is at all times acting as an independent contractor under this Agreement and not as an agent, employee, or partner of TIA.  Neither party shall be entitled to bind the other party in any way. 

9.15.    Survival.  All provisions which by their express or implicit terms are intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement and be enforceable in accordance with their terms.

9.16.    Allocation of Risk.  The paragraphs on limitation of liability and disclaimer of warranties allocate the risks in the Agreement between the parties.  This allocation is an essential element of the basis of the bargain between the parties.

9.17.    Governing Law.  This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Florida covering contracts made and to be performed in that State, without regard to its conflict of laws principles.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.  Further, the parties irrevocably agree that any legal action or proceedings brought by or against them with respect to this Agreement shall be brought in the courts in and for Hillsborough County, Florida, and the United States District Court for the Middle District of Florida and, by execution and delivery hereof, the parties irrevocably submit to such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the above courts.  The parties hereby expressly waive any and all right to a trial by jury with respect to any action, proceeding or other litigation resulting from or involving the enforcement of this Agreement.

9.18.    Attorneys’ Fees.  In any action brought under this Agreement, the prevailing party shall be entitled to recover its actual costs and attorneys’ fees and all other litigation costs, including expert witness fees, and all actual attorneys’ fees and costs incurred in connection with the enforcement of a judgment or order arising from any action or proceeding.

9.19.    Third Party Beneficiaries.  There are no intended third party beneficiaries of this Agreement (including SUBSCRIBER’s Clients).  SUBSCRIBER covenants and agrees that it will be responsible for the acts or omissions of its Authorized Users and Clients that would be a breach of this Agreement if the same were done by SUBSCRIBER.