By clicking “I Agree” the Provider named below (“Provider”) agrees to the following terms and conditions with Storm Advisor, INC. (“Company”).
- Provider is in the business of providing insurance, restoration and/or general contractor services to homeowners.
- Company operates an online community at www.stormadvisor.com (the “Site”), where customers may request information or connect with adjusters, restoration contractors, and general contractors.
- The parties wish to set forth their understandings concerning the manner and circumstances whereby Company can forward leads to Provider in exchange for compensation.
NOW THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as follows:
- Generation of Leads by Company. Company may, in such manner and at such times as may be mutually agreed by the parties, provide to Provider the names, phone numbers, addresses, and/or email addresses of persons who have expressed an interest in acquiring services of the Provider by completing a form at the Site or by other means deemed necessary by Company (each such person, a “Lead”), provided that Company shall use reasonable commercial efforts to forward information only for persons who list as a city and state of residence one of the jurisdictions designated by Provider. The information provided to Provider by Company with respect to a Lead (i) shall include information sufficient to allow Provider to contact the Lead and such other information concerning the Lead and the requested services as the parties may mutually agree from time to time, including the Lead’s address including city and state of residence; but (ii) shall not be construed as an application for service, an agreement for services rendered by Provider, Letter of Representation, or any other contracts of any kind. The communication in which Company provides such information to Provider is referred to in this Agreement as a “Lead Notice.” Company shall send a separate Lead Notice for each Lead.
- Response of Provider. Upon receipt of a Lead Notice, Provider may, but shall not be required to, contact the Lead, either by telephone (if a telephone number is provided in the Lead Notice) by email, or through the proprietary Storm Adviser marketplace platform. If the Provider determines to contact the Lead it shall do so within twenty four (24) hours of receiving the request. Following contact with a lead, Provider shall provide Company with such information as Company may request from time to time, including but not limited information concerning any services contracted with such Lead.
- Representations of Provider. Provider hereby represents as follows to Company:
- Provider is currently and will remain licensed to conduct the business contemplated by this Agreement in each of the jurisdictions for which it requests Leads.
- Provider will promptly notify Company of (i) the closing of any deal with a Lead generated by Company, (ii) any complaints made by a Lead generated by Company in connection with Provider’s services, or any adverse actions taken against Provider by any regulatory body.
- Provider shall not refer to Company as a public adjuster or contractor in any official or non-official communications or take any actions (other than the actions specifically authorized by this Agreement) that would be reasonably likely to lead to the characterization of Company as a public adjuster or contractor.
- In dealing with Leads, Provider shall conduct itself with no less courtesy, responsiveness, and professionalism than it uses in dealing with its other customers.
- Provider shall make such investigation of Leads and related matters as Provider determines in its sole discretion.
- Responsibilities of Company. Following the transmission of a Lead Notice, Company shall have no obligation with respect to the contemplated services or the relationship between Provider and the Lead. Without limiting the foregoing, Company shall not participate in any negotiations between Provider and the Lead or provide any additional information concerning the Lead to Provider, or vice-versa.
- No Representations Concerning Leads. Company makes no representations concerning Leads or the information they provide. Without limitation, Company does not represent that:
- The information provided by a Lead, including the Lead’s city and state of residence, is accurate;
- A Lead is a registered user of Company;
- The arrangement with Company will generate any particular number of Leads;
- Leads referred by Company will lead to closed deals; or
- A Lead is a real person.
- Restrictions on Company. Company shall not provide Leads with any rate quotes from Provider, provide any other information concerning Provider to Leads (other than ratings, reviews, and publicly-available information), or make any representations concerning Provider to Leads, except as authorized by Provider in writing in advance.
- Ownership of Intellectual Property. Company is the exclusive owner of the Site and all of the intellectual property rights associated with the Site, including all trademarks, service marks, patents, copyrights, trade secrets, designs, algorithms, and software, even if Company incorporates into the Site suggestions made by Provider. Company is also the exclusive owner of all data it collects from the use and operation of the Site, including but not limited to the data it collects from Leads, except that Provider may use any data included in Lead Notices.
- Confidentiality; Employees.
- Included Information. For purposes of this Agreement, the term “Confidential Information” means all confidential and proprietary information of a party, including but not limited to information concerning people, data, research, products, documentation, services, formulae, processes, techniques, developments, inventions, engineering, pricing, internal procedures, finances, employees and business opportunities.
- Excluded Information. For purposes of this Agreement, the term “confidential and proprietary information” shall not include (i) information already known or independently developed by the recipient without the use of any Confidential Information, or (ii) information known to the public through no wrongful act of the recipient.
- Confidentiality Obligations. During the Term and at all times thereafter, neither party shall disclose Confidential Information of the other party or use such Confidential Information for any purpose other than in furtherance of this Agreement. Without limiting the preceding sentence, each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses to safeguard its own Confidential Information. Notwithstanding the foregoing a party may disclose Confidential Information (i) if required to do by legal process (i.e., by a subpoena), provided that such party shall notify the other party prior to such disclosure so that such other party may attempt to prevent such disclosure or seek a protective order; or (ii) to any applicable governmental authority as required in the operation of such party’s business.
- Return of Confidential Information. Upon termination of this Agreement for any reason or upon the other party’s written request, each party promptly shall (i) return or destroy, at the other party’s direction, all material, tangible or intangible, embodying the Confidential Information in such party’s possession or under such party’s control; and (ii) if requested by the other party, deliver an affidavit, signed by an executive officer of such party, certifying that such party has complied with such obligation.
- Employees. During the Term and for a period of three (3) years thereafter, neither Company nor Provider shall hire, solicit for hire, or directly or knowingly indirectly use the services of any employee of the other party without the prior written consent of such other party. For purposes of this section, a person shall be deemed an “employee” of a party if such person has provided services to such party as an employee or independent contractor at any time within the preceding six (6) months.
- Injunctive Relief. The parties acknowledge that a breach of this section 8 will cause the damaged party great and irreparable injury and damage, which cannot be reasonably or adequately compensated by money damages. Accordingly, each party acknowledges that the remedies of injunction and specific performance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies.
- In General. As compensation for providing Leads to Provider, Company shall be entitled to the compensation described on the linked Marketplace Schedule of Compensation.
- Not Contingent. The compensation described in section 9.1 shall not be contingent upon (i) the receipt of a service application from a Lead, (ii) the closing of any deal, or (iii) any other event.
- Faulty Leads. Provider shall not be required to pay compensation with respect to any Lead if both the email address and telephone number provided by such Lead are determined to be inactive or inaccurate. If the Provider has already paid compensation for such a Lead, it shall be entitled to a credit.
- Payment. The compensation described in section 9.1 shall be paid to Company by the fifth (5th) day of each month with respect to Lead Notices sent by Company to Provider during the preceding month, using a credit card deposit or such other mechanism as the parties may mutually agree from time to time.
- Reports. Company and Provider will cooperate in developing reports reflecting the calculation of the compensation due to Provider.
- Compensation Following Termination. Following the termination of this Agreement, Company shall be entitled to compensation pursuant to section 9.1 for all Lead Notices sent prior to termination.
- In General. The term of this Agreement (the “Term”) shall begin on the date first written above and shall remain in effect for one (1) year. Thereafter, the Term shall be automatically renewed for additional periods of one (1) year apiece unless either party gives notice of non-renewal no less than thirty (30) days before the expiration of the then-current term.
- Termination without Cause. Either Company or Provider may terminate this Agreement by giving no less than thirty (30) days’ notice to the other party.
- Termination for Cause. Either Company or Provider may terminate this Agreement in the event the other party breaches this Agreement and such breach is not cured within ten (10) days’ notice from the non-breaching party.
- Result of Termination. Following any termination of this Agreement (i) Company shall not forward any additional Lead Notices, but (ii) the parties shall comply with any obligations that, by their terms, extend beyond termination, including but not limited to the obligations of Provider set forth in section 3.2. The termination of this Agreement shall not affect the rights or obligations of the parties as in effect immediately before termination.
- Indemnification for Claims by Leads.
- Indemnification by Provider. Provider shall indemnify and hold Company harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising from claims made by Leads against Company in connection with services offered or made by Provider, except to the extent such claims, liabilities, losses, damages, costs or expenses were caused by Company’s breach of section 6.
- Indemnification by Company. Company shall indemnify and hold Provider harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising from claims made by Leads against Provider in connection with services offered or made by Provider to the extent such claims, liabilities, losses, damages, costs or expenses were caused by Company’s breach of section 6.
- Notice of Claim. Upon receipt of a third party claim or demand for which a party is entitled to indemnification, such party (the “Indemnified Party”) shall (i) notify the party required to provide such indemnification (the “Indemnifying Party”) in writing of the nature of the claim and the names and addresses of the persons involved in or having an interest in such claim; (ii) furnish the Indemnifying Party with all documents and information within the possession, custody, or control of the Indemnified Party and relating to such claim; and (iii) cooperate with the Indemnifying Party should the Indemnifying Party choose to defend such claim pursuant to section 11.4.
- Defense of Claim. Upon receipt of the notice described in section 11.3, the Indemnifying Party shall be entitled to exercise control of the defense and settlement of any third party claim giving rise to the claim to indemnification, provided that (i) such defense and settlement shall be at the sole cost and expense of the Indemnifying Party; (ii) the Indemnifying Party shall notify the Indemnified Party of its intention to assume control of the defense and settlement within a reasonable time of its receipt of the notice described in section 11.3; (iii) the Indemnifying Party shall be permitted to control the defense of the claim only if the Indemnifying Party is financially capable of such defense and engages the services of a qualified attorney, each in the reasonable judgment of the Indemnified Party; (iv) the Indemnifying Party shall not thereafter withdraw from control of such defense and settlement without giving reasonable advance notice to the Indemnified Party; (v) the Indemnified Party shall be entitled to participate in, but not control, such defense and settlement at its own cost and expense; (vi) before entering into any settlement of the claim, the Indemnifying Party shall be required to obtain the prior written approval of the Indemnified Party, which shall be not unreasonably withheld, if pursuant to or as a result of such settlement, injunctive or other equitable relief would be imposed against the Indemnified Party or its assets or business; and (vii) the Indemnifying Party will not enter into any settlement of any such claim without the prior written consent of the Indemnified Party, unless the Indemnifying Party agrees to be liable for any amounts to be paid to the third party pursuant to such settlement and satisfies to the reasonable satisfaction of the Indemnified Party its ability to satisfy such liability.
- Limitation of Liability. NEITHER COMPANY NOR PROVIDER SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR BUSINESS ADVANTAGE), WHETHER BASED UPON A CLAIM OR ACTION OF TORT CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, CONTRIBUTION, INDEMNITY OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation on Damages. THE AGGREGATE MONETARY LIABILITY OF EITHER PARTY FOR ANY CAUSE OR CAUSES (REGARDLESS OF THE FORM OF ACTION) UNDER OR RELATING TO THIS AGREEMENT, WHETHER PRIOR OR SUBSEQUENT TO ITS TERMINATION, SHALL IN NO EVENT EXCEED THE TOTAL OF ALL AMOUNTS PAID TO COMPANY BY PROVIDER PURSUANT TO THIS AGREEMENT DURING THE PRECEDING TWELVE (12) MONTHS.
- Exceptions. The limitations set forth in section 12.1 and 12.2 shall not apply to (i) claims for infringement of Company’s intellectual property pursuant to section 7, (ii) claims under section 8 (dealing with confidentiality), (iii) claims under section 11 (dealing with indemnification) or (iv) claims by Company for the actual compensation due under section 9.
- Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in writing and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of such right or remedy generally.
- Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal counsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with delivery fees paid, or (ii) on the date transmitted by facsimile or electronic mail with transmission acknowledgment, to the following addresses or such other address or addresses as the parties may designate from time to time by notice satisfactory under this section:
Storm Advisor, INC.
1717 N Bayshore Drive, #A-3748
Miami Florida, 33132
Provider: The information provided by Provider at the Site.
Governing Law. This Agreement shall be governed by the internal laws of Florida without giving effect to the principles of conflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Florida State courts located in or serving Miami-Dade, Florida, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party hereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by regular mail to the address set forth above and/or by any means authorized by Florida law.
- Force Majeure. Neither party shall be entitled to recover damages or terminate this Agreement by virtue of any delay or default in performance by the other party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected; provided that the party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or against any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to the interpretation of this Agreement.
- No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound, only if and when all parties have executed this Agreement.
- Signature in Counterparts. This Agreement may be signed by counterparts, each of which shall be deemed to be a fully-executed original.
- Signature by Facsimile or Email. An original signature transmitted by facsimile or email shall be deemed to be original for purposes of this Agreement.
- Assignment. No party to this Agreement shall assign his or its rights or duties hereunder without the prior written consent of the other parties. Any attempted assignment without such prior written consent shall be null and void.
- No Third Party Beneficiaries. Except as otherwise specifically provided in this Agreement, this Agreement is made for the sole benefit of the parties. No other persons shall have any rights or remedies by reason of this Agreement against any of the parties or shall be considered to be third party beneficiaries of this Agreement in any way.
- Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of each party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.
- Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof.
- Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons may require.
- Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days, except that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered timely if paid, given, or performed on the next succeeding business day.
- Execution. This Agreement shall be executed by the Provider by clicking “I Agree” on the Site. However, this Agreement shall not become effective until the Company has affirmatively acknowledged its agreement in electronic form (via email or otherwise). If Company has not affirmatively acknowledged its agreement within seventy two (72) hours following execution by Provider, this Agreement shall become null and void.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings.