Affiliate Terms

NEXT INSURANCE INC.
REFERRAL PROGRAM
TERMS OF SERVICE
Last Revised: October 22, 2018
These Referral Program Terms of Service, including any associated Referral Enrollment Form, are a legally binding agreement (collectively, the “Agreement”), between Next Insurance, Inc., (“Next”), and the Referral Program participant (the “Company”). This Agreement governs Company’s participation in the Next Referral Program and its use of the Next service. Next provides insurance services that Company wishes to make available to its customers. Capitalized terms used but not defined herein shall have the meanings given to them in an Referral Enrollment Form.

Definitions

The following are defined terms:

“Company’s Confidential Information” means Confidential Information (as defined below) that is proprietary to the Company.
“Confidential Information” means financial, technical, legal, marketing, network, and/or other business information, reports, records, or data (including, but not limited to, computer programs, code, systems, applications, analyses, passwords, procedures, output, information regarding software, sales data, vendor lists, customer lists, and other customer-related information, business strategies, advertising and marketing plans, creative concepts, specifications, designs, and/or other material) which the disclosing party deems, and the receiving party should consider, proprietary and/or confidential to (and of independent economic value to) the disclosing party. Confidential Information may be disclosed between parties by delivery, electronic or manual, access to networks or computers of the other party, or any other means in which the other party is, or becomes, in possession of Confidential Information of the other party.
“Customer” means those customers of Company who use or access the Service.
“Intellectual Property Rights” means all patents, patent rights, copyrights, moral rights, trade secret rights, trademark, service mark and trade dress rights and all other intellectual property rights, as may exist now and/or hereafter come into existence, including derivative rights, and all renewals and extensions thereof, under the laws of the United States or any other state, country or jurisdiction.
“Law(s)” means all federal, state and local laws, rules and regulations as now in effect and as amended from time to time that apply to a party’s business or their obligations under this Agreement.
“Next’s Confidential Information” means Confidential Information that includes the Service and its specifications.
“Service” means Next’s insurance services including, among other things, a website through which Customers may obtain insurance policies.

General Purpose and License Grant

General Purpose. The general purpose of this Agreement is to make the Service available to Customers of the Company. This goal is achieved by the Company performing certain activities to inform Customers of the availability of the Service from Next by directing Customers to view Next’s website where more information about the Service can be found.
Rights Granted; License Restrictions. Next grants Company, for the Term (as defined below) of this Agreement, a non-exclusive, non-transferable license to make the Service available as described in this Agreement to Customers, only via Next and for the direct benefit of its Customers. Company has no right to sublicense, rent, lease, or distribute the Service, except as otherwise provided under this Agreement. Company shall not reproduce, copy, modify, translate, reverse engineer, disassemble, decompile or otherwise attempt, or permit others to attempt, to discover the source code of the Service, in whole or in part. Company may make the insurance offerings of other parties available to its Customers, but agrees not to directly use the Service to design or develop a competing product.

Responsibilities of the Parties

Next.
- Next will provide the Service to Customers pursuant to terms of service or similar agreements directly between Next and such Customers.
- Next will provide Company with links, web pages, flyers, inserts or other content Next deems helpful to the Company making the Service available to Customers.
- Next will provide operational reporting regarding the number and timing of Customers view of its website.
- Next retains the right, in its sole and absolute discretion, to refuse to offer to any and/or decline to bind any insurance, including, without limitation, any Customer. Next will have the sole authority to determine the price quoted and fees charged for the Service, including any insurance products, and will have the sole responsibility for issuing policies, collecting premium and otherwise servicing any insurance policies issued to Customers.
Company. Company will actively and prominently make the Service available to Customers. However, Company acknowledges and agrees that Company is not an insurance agent, and therefore must observe and agrees to comply with the following:
- Company is only authorized to inform Customers of its relationship with Next, provided that any such communications that have not been previously approved or provided by Next will be subject to Next’s prior written approval;
- Company will not:
  - solicit promote any insurance products to Customers,
  - recommend a particular coverage, policy or insurance company to Customers, or
  - discuss or offer advice regarding insurance, including discussing specific insurance policy pricing, terms and conditions, or otherwise giving opinions or advice regarding coverage to Customers;
- In no event will Company purport to make representations or warranties on Next’s behalf respect of or any Next product, or purport to act as an agent of Next for any purpose.
Customers. Company acknowledges and agrees that any relationship between a Customer and be solely governed by the any agreement Customers. Customers will need to provide their own compatible computing and/or mobile devices with current software, access or download the Service and/or agree to any applicable terms of service.

Fees

Fees. Fees will be paid for each cohort of Customers — as defined in the Referral Enrollment Form – who within a month reach a certain page on Next’s webpage. This page will not be the page from which Next binds the customer to an insurance policy and such fees will not be dependent upon a Customer purchasing any product or service from Next. The size of a cohort and associated fee shall be defined on the Referral Enrollment Form. Partial cohorts will be paid on a pro-rata basis.
Payment Terms. Next will make payments by the 20th of each month for fees earned in the previous calendar month.

Intellectual Property

Next. Next shall own all right, title and interest, including all Intellectual Property Rights, in and to the Next Confidential Information, the Service, and all works, ideas, and deliverables made, reduced to practice, created or developed under this Agreement. Next shall own all improvements, including all Intellectual Property Rights in the same, in and to the Service.
Company. Company shall own all right, title and interest, including all Intellectual Property Rights to the Company Confidential Information.
Trademark Licenses; Notices. Next hereby licenses to Company the trademarks it actively provides to Company for the Term and for the limited purpose of referring the Service to the Customers. Company hereby licenses to Next the trademarks it actively provides to Next for the Term and for the limited purpose of developing informational materials for the Customers. Neither party shall remove any copyright or other proprietary rights notices of the other party on any materials provided by the other party under this Agreement.

Confidential Information

Nondisclosure.
- Next agrees (a) to hold Company’s Confidential Information in strict confidence, (b) not to disclose Company’s Confidential Information to any third party, and (c) not to use Company’s Confidential Information for any purpose other than as permitted by this Agreement.
- Company agrees (a) to hold Next’s Confidential Information in strict confidence, (b) not to disclose Next’s Confidential Information to any third party, and (c) not to use Next’s Confidential Information for any purpose other than as permitted by this Agreement.
Each party may disclose the other party’s Confidential Information to its employees or authorized contractors who (i) have executed or are otherwise knowingly bound by a non-disclosure agreement requiring such employee or contractor to hold in confidence all third party confidential information obtained in connection with such employment or consultancy and (ii) have a bona fide need to know such information, but only to the extent necessary to carry out this Agreement. Each party agrees to instruct all such employees and consultants not to disclose such Confidential Information to third parties without the prior written permission of the disclosing party. Upon termination of this Agreement, the receiving party will promptly return to the disclosing party all tangible items containing or consisting of the disclosing party’s Confidential Information and shall remove or destroy all copies or records of such Confidential Information except as may be required by law, rule, regulation or administrative order.
Exceptions. Notwithstanding the foregoing, Confidential Information does not include information which: is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure; is hereafter rightfully furnished to the receiving party by a third party, without restriction as to use or disclosure; is information which the receiving party can document was independently developed or obtained by the receiving party without use of the disclosing party’s Confidential Information; or is disclosed pursuant to the lawful requirement or order of a court or governmental agency, provided that, upon the receiving party’s request for such a disclosure, the receiving party gives prompt notice thereof to the disclosing party (unless such notice is not possible under the circumstances, or is prohibited by such lawful order) so that the disclosing party may have the opportunity to intervene and contest such disclosure and/or seek a protective order or other appropriate remedy.

Indemnification

By Next. Next shall indemnify, defend and hold harmless Company, its officers, directors, employees and agents from and against all losses, costs, damages, judgments, settlements, penalties, liabilities and expenses (including reasonable attorneys’ fees) arising out of third party claims that the Service, as provided by Next to Company or the Customers under this Agreement and used within the scope of this Agreement, infringes or misappropriates any valid U.S. patent, trade secret, copyright or trademark, provided, however, that Company (i) notifies Next promptly in writing of the claim, (ii) provides reasonable assistance in connection with the defense and/or settlement thereof, and (iii) permits Next to control the defense and/or settlement thereof.
Limitations. Next’s obligation to indemnify Company shall not apply to the extent that any such third party claim arises out of (a) any Company trademarks, (b) Company’s or any Customer’s use of the Service other than as expressly provided in this Agreement, or (c) Company’s violation of the Responsibilities of the Parties, as listed above.
Next Options. In the event of an infringement action against Company in connection with the Service, or in the event Next believes such a claim is likely that is subject to the indemnity provisions of the Agreement, Next shall be entitled, at its option but without obligation or additional cost to Company, to (i) appropriately modify or replace the Service with functionality which is functionally similar in all material respects and which, in Next’s opinion, does not infringe the claimed third party rights; (ii) obtain a license with respect to the applicable third party intellectual property rights; or (iii) if neither (i) nor (ii) is commercially practicable, immediately terminate this Agreement and all obligations hereunder.
By Company. Company shall indemnify, defend and hold harmless Next, its officers, directors, employees and agents from and against all losses, costs, damages, judgments, settlements, penalties, liabilities and expenses (including reasonable attorneys’ fees) arising out of third party claims that (a) Company’s trademarks infringe or misappropriate any valid worldwide trademark or other intellectual property right, publicity right or similar personal right, or (b) Company violated any rights of third parties while using the Service or (c) resulting from or arising out of any violation or alleged violation by Company of any applicable law; provided, however, that Next (i) notifies Company promptly in writing of the claim, (ii) provides reasonable assistance in connection with the defense and/or settlement thereof, and (iii) permits Company to control the defense and/or settlement thereof.

Disclaimer; Limitation of Liability

EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEXT MAKES NO warranties concerning the SERVICE, WHETHER express, implied or otherwise, AND NEXT specifically disclaims the implied warranties of merchantability, fitness for a particular purpose AND noninfringement with respect THERETO . WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEXT SPECIFICALLY DOES NOT WARRANT THAT the SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NEXT WILL NOT BE LIABLE FOR ANY DAMAGES THE COMPANY OR CUSTOMER MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE THE SERVICE PROVIDED HEREUNDER. NEXT WILL NOT BE LIABLE FOR FAILURE OF THE INTERNET OR TELECOMMUNICATIONS SYSTEMS.
IN NO EVENT WILL NEXT OR COMPANY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, and notwithstanding the failure of the essential purpose of any remedy . THE LIABILITY OF ANY PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, the GREATER OF (I) fees received by COMPANY DURING THE MOST RECENT 12 MONTHS OF THE TERM; OR (II) FIFTY THOUSAND DOLLARS ($50,000).
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY TO THE FOLLOWING: (I) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS; (II) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (III) EITHER PARTY’S MISUSE OF THE OTHER’S INTELLECTUAL PROPERTY; (IV) COMPANY’S VIOLATION OF ITS OBLIGATIONS IN THE RESPONSIBILITIES OF THE PARTY’S SECTION OR VIOLATION OF APPLICABLE LAW AND/OR (V) THE WILLFUL MISCONDUCT AND/OR INTENTIONAL OR GROSSLY NEGLIGENT ACTIONS OF EITHER PARTY HEREUNDER.

Term and Termination

Term. The term of this Agreement shall commence on the Effective Date and continue unless terminated as set forth below (the “Term”).
Termination. Either party may terminate this Agreement for convenience (i.e., for any reason or for no reason) with thirty (30) days notice to the other party.
Responsibilities Upon Termination. Upon the termination or expiration of this Agreement, and without limiting any other provision hereof: (i) any and all licenses granted under this Agreement shall immediately terminate; (ii) Company shall immediately cease its use of the Service; and (iii) except in the event of insolvency of Company, Company shall, at Next’s election, either promptly return to Next or destroy all Confidential Information, copies of any software, or third party software, if any, (including back-up copies), related documentation, deliverables, if any, and all other materials, whether tangible or intangible, furnished by Next pursuant to this Agreement. Next shall not be liable to Company or any third-party for any termination of access to the Service.

General Provisions

Publicity. Next may use Company’s name for referral purposes, including publishing customer lists. The content of any press releases will be mutually agreed upon by the parties.
Governing Law; Venue; Compliance. This Agreement and any disputes arising under, in connection with, or relating to this Agreement will be governed by the laws of the State of California, excluding its conflicts of law rules. Any litigation pertaining to the interpretation or enforcement of this Agreement shall be filed in and heard by the state or Federal courts located in Santa Clara, California, and the parties hereby submit to the jurisdiction of and waive any venue objections against such courts. Each party will perform all of its activities, obligations and responsibilities contemplated under this Agreement in compliance with all applicable Laws and will obtain all licenses or permits as may be required by any applicable Laws in order to conduct the activities contemplated hereunder. Each party shall acquire and maintain in effect all governmental regulatory authorizations, licenses and permits of every type from every state or federal agency necessary for each party’s respective business. Each party is responsible for legal compliance and monitoring of its own respective website for legal and regulatory compliance.
Audit of Traffic. Next reserves the right to audit the traffic delivered by Company under this Agreement and the Referral Enrollment Form to detect fraud or other forms of non-legitimate traffic. Should Next detect such traffic, it reserves the right to adjust, decrease, or seek back any fees paid under either this Agreement or the Referral Enrollment Form resulting from such traffic.
Assignment. Neither party may assign or transfer this Agreement or any of its rights or obligations under this Agreement without the prior written permission of the other. Notwithstanding the foregoing, (i) either party may, without the other’s consent, assign or transfer this Agreement in full in connection with a merger, consolidation, or sale of all or substantially all of its assets, provided that the non-assigning party is given notice of such assignment and the assignee explicitly assumes all obligations under this Agreement; and (ii) Next may, without Company’s consent, assign or transfer this Agreement in full, without notice, to any entity Next controls, is controlled by, or is under common control with, where control is direct or indirect beneficial ownership of a majority of the outstanding voting securities of an entity, or the contractual or other power or authority to appoint a majority of the board of directors, or other similar governing body. This Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of each party. Any attempt to transfer, sublicense or assign any of the rights or duties in violation of this Section is prohibited and shall be null and void.
Relationship of Parties. Neither this Agreement nor the parties’ business relationship established hereunder will be construed as a partnership, franchise, joint venture, or agency relationship. The parties are independent contractors of one another. Neither party’s employees or contractors are, or shall be deemed for any purpose to be, employees of the other. Neither party shall be responsible to the other or any governing body for any payroll-related taxes related to the performance of this Agreement.
Survival; Waiver; Force Majeure. Sections 1, 4, 5, 6, 7, 8, 9 and 10 shall survive any termination or expiration of this Agreement. No waiver of any breach of any provision of this Agreement will be considered to be a waiver of any prior, concurrent or later breach of the same provisions or different provisions, and will not be effective unless made in writing and signed by an officer of the waiving party. Neither party will have any liability to the other under, in connection with, or for any reason relating to, this Agreement as a result of any failure of performance as a result of an event of force majeure.
Notices; Modifications. Any notice required or permitted by this Agreement shall be in writing and shall be sent by any means reasonably used to provide the other party with notice such as a softcopy (e.g., e-mail, banner notification via the Service) or hard copy (e.g., mail, overnight carrier or hand delivery). Next may modify the terms of this Agreement or the features of the Service at any time. In the event that such modification constitutes a material change in Next’s sole discretion, Next will provide notice to Company. Company’s continued use or referall of the Service after any modification of this Agreement or of the Service will constitute acceptance of any such modifications.
Entire Agreement; Severability. This Agreement, including its exhibits, constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, whether written or oral. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force.
Performance or Benefit by Affiliates. The Parties recognize that Next may exercise some of all of its rights, under this Agreement through one or more of its Affiliates