InsuredMine Terms of Service
Last Updated: April 23, 2020
Click on any of the links below to go straight to one of the following sections:
If you are unsure as to the terms of this Agreement, please do not proceed further and contact us at firstname.lastname@example.org.
PLEASE READ THE TERMS CONTAINED IN THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
1. INTRODUCTION TO INSUREDMINE AND OUR PLATFORM
2. TERRITORIAL RESTRICTION
If you are a resident of any other country, please ensure compliance with all local laws prior to using our Website, App, or Platform.
If you have any questions regarding this Section, please email us at email@example.com
4. ELIGIBILITY & ACCESS RESTRICTIONS
There are monthly subscription fees (the “Service Fees”) for accessing and using our Platform and our Services. The Services include the InsuredMine customer App, chatbot, and Agency Portal.You agree to pay InsuredMine all applicable fees (“Fees”) as described in the invoice (“Invoice”) we will send you in accordance with the terms therein.
The Invoice will include:
- Service Fees (monthly fees, payable in advance)
- Service Capacity (depends on the number of users, unless special pricing is offered)
- Initial Service Term
- Implementation Fee (depends on the number of users, unless special pricing is offered)
Provision of Implementation Services:
InsuredMine will use commercially reasonable efforts to provide Customer the services described below under Implementation Services, and Customer shall pay InsuredMine the Implementation Fee in accordance with the terms herein.
Description of Implementation Services:
- Data integration/pull from current Agency Management System or any other system that is being used by the agency.
- Customer training (on site or via webinar).
- Providing documentation.
- Co-branding App and Agent portal.
- Initial communication to customers for app download.
- Tracking and monitoring all aspects of Company applications to assure proper function.
If your use of the Services exceeds the Service Capacity set forth in the Invoice or otherwise requires the payment of additional fees (per the terms of this Agreement), you shall be billed for such usage and you agree to pay the additional fees in the manner provided herein. InsuredMine reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term as set forth in the Invoice or the then-current renewal term, upon thirty (30) days prior notice to you (which may be sent by email). If you believe that InsuredMine has billed you incorrectly, you must contact InsuredMine no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to InsuredMine’s customer support department and emailed at firstname.lastname@example.org
InsuredMine may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by InsuredMine thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on InsuredMine’s net income.
In the event that we modify the subscription fee in the future, we will communicate such modification to you as per the procedure detailed under Section 21 or as otherwise specified in another agreement between InsuredMine and you.
6. SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, InsuredMine will use commercially reasonable efforts to provide the Services in accordance with the Service Level Terms as described in Section 26. As part of the registration process, you will identify an administrative username and password for your InsuredMine account. InsuredMine reserves the right to refuse registration of or cancel passwords it deems inappropriate. Subject to the terms hereof, InsuredMine will provide you with reasonable technical support services in accordance with the terms set forth in Section 26.
7. SERVICE LICENSE
Subject to your compliance with the terms of this Agreement, we grant you a limited, non-exclusive, revocable, non-transferable, non-licensable, non-sublicensable license to access and use our Website, App, or Platformto: (a) download, install, and use our App for your use in accordance with this Agreement on any mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with this Agreement, and (b) to access, stream, download and use on such Mobile Device our Platform and content made available in or otherwise accessible through our App, strictly in accordance with this Agreement.
You will not use, copy, adapt, modify, prepare derivative works based upon our Platform, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit our Website, App, or Platform, except as expressly permitted in this Agreement.
When accessing our Website, App and Services, you need to make sure that your internet connection is adequate. You are solely responsible for your internet connection including and not limited to the applicable charges, rates, tariffs, and other fees that might apply.
YOU AGREE THAT WE ARE NOT LIABLE FOR ANY DAMAGES OR INJURY RESULTING FROM YOUR ACCESS OR USE OF OUR WEBSITE, APP, OR PLATFORM. WEPROVIDE NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY. THERE IS NO WARRANTY WHICH WILL EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. ANY DAMAGE ALLEGED FOR A LOSS OR INJURY IS LIMITED TO THE FEE, IF ANY, PAID TO INSUREDMINE FOR THE ABILITY TO ACCESS OR USE OUR WEBSITE, APP, OR PLATFORM.
8. ACCESS AND SERVICE RESTRICTIONS
You agree thatour Platform, including but not limited to the Website, App, graphics, trademarks, and editorial content, contains proprietary content, information, and material, which are owned by InsuredMine and/or our licensors, including our customers, brands and agencies, and are protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for your permitted use of our Platform or in any manner that is inconsistent with the terms contained in this Agreement.
You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based onour Platform, in any manner, and you will not exploitour Platform in any unauthorized way whatsoever, including but not limited to, usingour Platform to transmit any computer viruses, worms, Trojan horses or other malware, or by trespassing or burdening network capacity. You further agree not to useour Platform in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using our Platform.
9. RESERVATION OF RIGHTS
You acknowledge and agree that our Website, App,andPlatform are provided for your use. Except to the extent necessary to access and use ourWebsite, App,or Platform, nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents, trademarks, trade secrets or other proprietary rights in or relating to our Website, App, or Platform, whether expressly, by implication, estoppel, or otherwise. InsuredMine and its licensors and service providers reserve and will retain their entire right, title, and interest in and to ourWebsite, App, and Platform, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
10. ACCESS RIGHTS
We collect personal and business information, which we need, from you when you register to use our Website, App, or Platform. This information is necessary for us to provide our Website, App, or Platform to you and is stored on our servers to enable us to continue to provide our Website, App, or Platform to you. Upon your written request, we will provide you with a list of all of the Personal Information that we store on you withinsixty (60) days of receiving your request. Also, upon your prior written request, we will delete any such information within sixty (60) days of receiving your request. Notwithstanding, please note that, if you ask us to delete all such information, we will not be able to continue to provide our Website, App, or Platform to you. Please send your requests to email@example.com.
11. USER DO’S AND DON’T’S
We collect personal and business information, which we need, from you when you register to use our Website, App, or Platform. This information is necessary for us to provide our Website, App, or Platform to you and is stored on our servers to enable us to continue to provide our Website, App, or Platform to you. Upon your written request, we will provide you with a list of all of the Personal Information that we store on you withinsixty (60) days of receiving your request. Also, upon your prior written request, we will delete any such information within sixty (60) days of receiving your request. Notwithstanding, please note that, if you ask us to delete all such information, we will not be able to continue to provide our Website, App, or Platform to you. Please send your requests to firstname.lastname@example.org.As a condition to access our Website, App, or the Platform, you agree to this Agreement and to strictly observe the following Do’s and Don’ts:
- Comply with all applicable laws, including, without limitation, tax laws, export control laws and regulatory requirements;
- Provide accurate information to InsuredMine and update from time to time as may be necessary;
- Review and comply with notices sent by InsuredMine, if any, concerning the Platform.
- Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, otherwise transfer or commercially exploit our Website, App, or the Platform (excluding any user content);
- Reverse engineer, decompile, disassemble, decipher, capture screen shots, or otherwise attempt to derive the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documents, or data related to the Services (the “Software”) for any underlying intellectual property used to provide our Website, App,or thePlatform, or any part thereof;
- Utilize information, content or any data you view on and/or obtain from our Website, App, or the Platform to provide any service that is competitive with us;
- Imply or state, directly or indirectly, that you are affiliated with or endorsed by InsuredMine unless you have entered into a written agreement with us;
- Adapt, modify or create derivative works based on ourWebsite, App, or the Platformor technology underlying our Website, App, or the Platform, or other Users’ content, in whole or in part;
- Rent, lease, loan, trade, sell/re-sell access to our Website, App,or the Platformor any information therein, or the equivalent, in whole or part;
- Deep-link to our Website, App,or the Platform for any purpose, i.e. including a link to our proprietary web pages other than our home page;
- Access, reload, or “refresh” or make any other request to transactional servers that are beyond generally accepted usage of web-based applications;
- Use manual or automated software, devices, scripts robots, other means or processes to “scrape”, “crawl” or “spider” any web pages contained in the site;
- Use automated methods to add contacts or send messages;
- Engage in “framing”, “mirroring”, or otherwise simulating the appearance or function of our Website;
- Attempt to or actually access our Website, App,or thePlatform by any means other than through the interface provided by InsuredMine;
- Attempt to or actually override any security component included in or underlying our Website, App,or thePlatform;
- Engage in any action that interferes with the proper working of or places an unreasonable load on our infrastructure, including but not limited to unsolicited communications, attempts to gain unauthorized access, or transmission or activation of computer viruses;
- Remove any copyright, trademark or other proprietary rights notices contained in or on our Website, App,or thePlatform, including those of both InsuredMine or any of our licensors; or
- Use any information obtained from our Website, App,or the Platform to harass, abuse or harm another User.
12. INSUREDMINE COMMUNICATIONS
You understand and agree that you may receive information and push notifications from InsuredMine via email, through our App, text message on your Mobile Device, or calls to your mobile number. You hereby consent to receive communications via email, through our App, text message on your Mobile Device, or calls to your mobile number. You acknowledge that you may incur additional charges or fees from your wireless provider for these communications, including text message charges and data usage fees, and you acknowledge and agree that you are solely responsible for any such charges and fees and not InsuredMine.
- Email Contact.
- Push Notification.
You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of ourWebsite, App,and Platform.
- Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of InsuredMine includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to InsuredMine to enable the provision of the Services such as information about the insurance customers of the Customer (“Customer Data”).
- The Receiving Party agrees: (i) to take all reasonable precautions to protect such Proprietary Information, and (ii) will not use Proprietary Information except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information unless required by law.
- The Disclosing Party agrees that the foregoing limitations on use of Proprietary Information shall not apply with respect to any information that the Receiving Party can document (i) is or becomes generally available to the public and was developed from that generally available source without any foreknowledge of the Proprietary Information, or (ii) was in its possession or known by Receiving Party prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) is required to be disclosed by law.
- Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. InsuredMine shall own and retain all right, title and interest in and to (i) the Services and Software, all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (iii) all intellectual property rights related to any of the foregoing.
- Notwithstanding anything to the contrary, InsuredMine shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies including, without limitation, information concerning Customer Data and data derived therefrom (“Derived Data”). InsuredMine may use Customer Data and any Derived Data based upon the Customer Data only for the provision of the Services.
You agree to indemnify, defend, and hold InsuredMine and our officers, employees, managers, directors, customers, and agents (the “Company Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against Company Indemnified Parties arising from any of the following: (i) a breach of this Agreement; (ii) the negligence, fraud, or willful misconduct of you or your employees, agents, or contractors; (iii) incorrect information provided by you in your account or elsewhere; or (iv) a failure by you or your employees, agents, contractors or invitees to comply with applicable laws and regulations.
No advice or information, whether oral or written, obtained from us or through our Website, App, or Platform, will create any warranty or representation not expressly made herein.
Your access to and use of our Website, App, and Platformor any content are at your own risk. You understand and agree that our Website, App,andPlatform are provided to you on an “AS IS” and “AS AVAILABLE” basis.
InsuredMine shall use all reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services as described in Section 5 in a professional and workmanlike manner. Services may be temporarily unavailable during scheduled maintenance or during unscheduled emergency maintenance, either by InsuredMine or by third-party providers, or because of other causes beyond InsuredMine’s reasonable control. InsuredMine shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
Without limiting the foregoing, to the maximum extent permitted under applicable law, WE DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty or representation and disclaim all responsibility and liability for:
- The completeness, accuracy, availability, timeliness, security or reliability of ourWebsite, App, orPlatform or any content;
- Any harm to your computer system, loss of data, or other harm that results from your access to or use of ourWebsite, App, or Platformor any content;
- The deletion of, or the failure to store or to transmit, any content and other communications maintained byourWebsite, App, or Platform; and
- Whether our Website, App, or Platform will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
No advice or information, whether oral or written, obtained from us or through our Website, App, or Platform, will create any warranty or representation not expressly made herein.
16. LIMITATION OF LIABILITY
You acknowledge and agree that, in no event will InsuredMineor its suppliers, officers, affiliates, representatives, contractors, and employees be liable to you or any third party for any indirect, punitive, exemplary, incidental, special, or consequential damages whether in contract, tort (including negligence), or otherwise arising out of this Agreement, or the use of, or the inability to use, our Website, App, or Platform, including, without limitation, any information made available through ourWebsite, App, or Platform pursuant to this Agreement. In the event the foregoing limitation of liability is determined by a court of competent jurisdiction to be unenforceable, then the maximum liability for all claims of every kind will not exceed one times (1x) the aggregate of payments received under this Agreementtwelve (12) months prior to the act that gave rise to the liability or exceeds such insurance coverage as required to be held by the Parties under, which ever is great. The foregoing limitation of liability will cover, without limitation, any technical malfunction, computer error or loss of data, and any other injury arising from the use of ourWebsite, App, or Platform. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages.To the extent that InsuredMine may not disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of InsuredMine’s liability will be the minimum permitted under applicable law.
17. TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Invoice, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either Party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. You will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, InsuredMine will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter InsuredMine may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
18. COPYRIGHT INFRINGEMENT/DMCA NOTICE
If you believe that any content on our Website, App, or Platform violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c) (“DMCA Takedown Notice”) must be provided to our designated Copyright Agent.
- Your physical or electronic signature;
- Identification of the copyrighted work(s) that you claim to have been infringed;
- Identification of the material on ourWebsite, App, or Platform that you claim is infringing and that you request us to remove;
- Sufficient information to permit us to locate such material;
- Your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
InsuredMine’s Copyright Agent to receive DMCA Takedown Notices is Sneha Bhagat, at email@example.com orat InsuredMine Inc., Attn: DMCA Notice, 1900 Jay Ell Drive, Richardson, Texas 75081. You acknowledge that for us to be authorized to take down any content, your DMCA Takedown Notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by InsuredMine in connection with the written notification and allegation of copyright infringement.
This Agreement is only for your benefit. You shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
20. ANTI-BRIBERY AND EXPORT COMPLIANCE
You agree not to promote, approach, use, distribute, transfer, provide, sub-license, share with, or otherwise offerour Website, App, or Platform in violation of any laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Actand similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”)our Website, App, or Platform to any destination, person, entity or end-use prohibited or restricted under the US law without prior US government authorization to the extent required by the applicable export control regulations, including without limitation, to any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the Export Administration Regulations or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by regulation. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
22. RELATIONSHIP OF PARTIES
23. GOVERNING LAW
24. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH INSUREDMINE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and InsuredMine agree (a) to waive your and InsuredMine’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Website, App, or Platform, resolved in a court, and (b) to waive your and InsuredMine’s respective rights to a jury trial. Instead, you and InsuredMine agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or a jury in court).
- No Class Arbitrations, Class Actions or Representative Actions
You and InsuredMine agree that any Dispute arising out of or related to these Terms of Service or use or access of our Platform is personal to you and InsuredMine and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and InsuredMine agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and InsuredMine agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
- Federal Arbitration Act
You and InsuredMine agree that these Terms of Service affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
- Notice; Informal Dispute Resolution
You and InsuredMine agree that each party will notify the other party in writing of any arbitral or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to InsuredMine shall be sent by certified mail or courier to InsuredMine Inc., Attn: Sneha Bhagat,1900 Jay Ell Drive, Richardson, Texas 75081. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your InsuredMine account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and InsuredMine cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or InsuredMine may, as appropriate and in accordance with this Section, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND INSUREDMINE AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR INSUREDMINE WITHIN (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND INSUREDMINE WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and InsuredMine agree that (a) any arbitration will occur in Dallas County, Texas, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of Texas, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
- Authority of Arbitrator
As limited by the FAA, these Terms of Service and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms of Service. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seekand hereby waiveall rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
- Rules of AAA
The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these Terms of Service, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Sectionis held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.
- Opt-Out Right
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION BY WRITING TO: INSUREDMINE INC., RE: OPT-OUT, 1900 JAY ELL DRIVE, RICHARDSON, TEXAS 75081. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 23.
26. SERVICE LEVEL TERMS
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than four hour, Company may credit Customer 5% of Service fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
- General Standards
InsuredMine will use its best efforts to ensure that the Software is fully functional and free of omissions and other Errors that would impact Customer’s ability to utilize Software services in full.
The processes, deliverables, services, etc. and all other Specifications contained in this Section and the Agreement shall not be changed unless otherwise mutually approved in writing by the Parties.
- Advance Warning
InsuredMine will use commercially reasonable efforts to provide at least fifteen (15) days advance notice (via email) of specific impending bug fixes, hot-fixes, Error correction that applies to the Services. In order to maintain working connections with the clients, InsuredMine pushes bug fixes, enhancements or corrections as required on a daily basis.
- Complete Support
InsuredMine will provide reasonable Support Services for the Services, needed to meet its obligations pursuant to this Agreement, including any issues that InsuredMine may not predict and/or forecast as of the Effective Date of this Agreement. Company will provide Technical Support to Customers via electronic mail on weekdays during the hours of 9.00 am – 5.00 pm PST “Support Hours”. However, Customer may initiate a helpdesk ticket 24/7 by emailing at firstname.lastname@example.org callbacks subject to the issue Category as detailed below. Customer will receive calls and will escalate issues reported by its customers to InsuredMine as needed.
- Standards, performance, technical support, and error correction
This section describes InsuredMine’s process for handling technical support and error correction requests. InsuredMine will cooperate with Customer in order to facilitate InsuredMine’s provision of the Services and Support Services. The provisions herein are in addition to and not in lieu of any similar provision elsewhere in the Agreement.
- Bug tracking and Repair
Questions and problems with the Services will be reported to Customer via published channels, either email or phone. Email is preferred so problems will be logged automatically and also easily distributed to engineering team. Customer communications which are clearly product problems (as opposed to simple questions about product use) are assigned internal tracking sequence by InsuredMine, which can be reported to the customer for their use. Problems, omissions, inaccuracies, and/or bugs in the Services will be communicated to InsuredMine by Customer and be fixed by InsuredMine either with a workaround or a hot fix delivered as a patch/bug fix release (based on the category level for the specific problem, omission, inaccuracy, and/or bug). For avoidance of doubt, while InsuredMine will use best efforts to permanently address Errors in the next delivered release, problems, omissions, inaccuracies, and/or bugs in the Services will be corrected by InsuredMine based on the category level for the specific problem, omission, inaccuracy, and/or bug, which may require a problem resolution, hot fix, or bug fix in the interim to any release of the Services.
- Error Correction and Support
InsuredMine will provide support to Customer according to the policies described below.
InsuredMine will have no obligation under this Agreement to provide any service to, or respond to any requests from Customer’s customer end users. Problem reports should be reported using the established email support lines, or in the case of Crisis problems by phone. InsuredMine will provide all Support Services during regular business hours Monday through Friday, excluding company holidays observed by InsuredMine. Customer will use either email or telephone to contact InsuredMine with initial support incident reports and subsequent follow-up, and InsuredMine will respond either by email or telephone. InsuredMine will track reports and progress in a Customer support database.
To help assist with this process, for example (and by way of illustration and not limitation), Customer will:
- Promptly notify InsuredMine when it believes that a problem requiring technical support and/or error correction has arisen.
- Cooperate with InsuredMine with respect to troubleshooting and/or resolution of the problem.
- Furnish InsuredMine with such relevant information as InsuredMine may reasonably require in order to provide technical support and/or error correction.
- In the event that both Parties deem an issue to be unsolvable by telephone or by other remote means, and it is necessary for InsuredMine to travel to Customer to work on it, Customer agrees to reimburse all reasonable travel and lodging expenses incurred by InsuredMine in traveling to Customer facilities in order to fulfill its Support obligations hereunder.
- Problem Resolution and Technical Support.
Problem resolutions will consist of either a workaround that is reasonably acceptable to Customer or a permanent solution. Problems that require a permanent solution will be considered resolved when the reproducible test case used to demonstrate the Error demonstrates the corrected behavior. Permanent solutions that result in an Upgrade of the InsuredMine program will be permanently resolved in a new release of the InsuredMine program. A workaround will be replaced with a permanent solution in the next Upgrade. The following severity schema defines time frames for responses, status reporting and resolution of escalated problems:
|#||Category: Crisis||Category: Critical||Category: Standard|
Services is inoperative or displays Errors that have a critical business impact and loss of business or service.
Services displays Errors that have significant business impact but does not cause loss of business or service.
Services displays Errors that have minimal business impact or minor loss of service.
|Response Objectives||1 hour response by phone or email||4 hours response by phone or email||1 Business Day respond by phone or email|
|Status Reporting Objectives||Daily||Daily||When scheduled for inclusion in Branded Software release|
|Resolution Objective||Same Day where commercially feasible, and 1 days otherwise||2 business days||Next product release|
|Resolution Deliverable||Hot-fix or workaround to be delivered to Customer||Hot-fix or workaround to be delivered to Customer||Release date for Upgrade release in which the error is solved (within 20 days)|
|Permanent||Next product point release||Next product point release||Next product major release|
|Resolution Objective||within 7 days||14 days||30 days|
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