”) is legally binding on the parties and shall govern your rights with respect to the various Amwins digital platorm portals (as modified from time-to-time, the “Portal
”) provided by Amwins Group, Inc. (“Amwins
”), which is incorporated herein by reference and which can be viewed at: https://www.amwins.com/privacy
PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE PORTAL, YOU (I) EXPRESSLY AGREE AND CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (II) REPRESENT AND WARRANT THAT YOU HAVE FULL POWER, AUTHORITY AND LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION.
The parties hereby agree as follows:
1. Access and Use.
Subject to and conditioned on your and your Authorized Users' (as defined below) compliance with the terms and conditions of this Agreement, Amwins hereby authorizes you, during the term of this Agreement, to access and use the Portal and its related documentation made available by Amwins (the “Documentation
”) solely for your internal business purposes by and through Authorized Users. This authorization is non-exclusive and non-transferable. “Authorized User
” means each of your employees that has been granted a valid user name and password that is used to verify such employee’s identity and authorization to access and use the Portal.
2. Usernames and Passwords.
Usernames and passwords should be kept secret, as they are used to verify identification and validate access to the Portal. You shall be responsible for all usernames and passwords issued to you and the use of the Portal by any other person gaining access to the Portal through you. You further agree to notify Amwins in writing within five (5) business days if any person previously issued a username has ceased to be your employee or has for any other reason ceased to be an Authorized User. Upon receipt of such notification, or if Amwins otherwise reasonably believes that any person previously designated as an Authorized User has for any reason ceased to be an Authorized User, Amwins will have the right to take action to prevent such person from accessing and using the Portal (including disabling any usernames and passwords).
3. Reservation of Rights; Ownership.
Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Portal, the Documentation, and/or the Third-Party Services (as defined in Section 6), whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Portal, the Documentation, and the Third-Party Services are and will remain with Amwins and the respective rights holders in the Third-Party Services (each such third party, the “Third-Party Service Provider
4. Use Restrictions.
of the Portal, in whole or in part; (iv) use the Portal in any way that is unlawful; (v) input, upload, transmit or otherwise provide to or through the Portal any data, content, materials and/or information (collectively, the “Input Data
”) that are unlawful or injurious, or contain, transmit or activate any viruses, worms, Trojan horses, corrupted files, hoaxes, bots, harmful code, denial-of-service attacks, backdoors, packet or IP address spoofing, forged routing, or any similar methods or technology that are of a destructive or deceptive nature; (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Portal or Amwins’ provision of the Portal to any third party, in whole or in part; (vii) conduct automated queries (including screen and database scraping, spiders, robots, crawlers, bypassing “captcha” or similar precautions, or any other automated activity with the purpose of obtaining information from the Portal) on the Portal; (viii) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Portal and/or any Documentation, including any copy thereof; (ix) access or use the Portal in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; (x) access or use the Portal to develop competitive products or services; or (xi) access or use the Portal in any manner or for any purpose that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable.
You may submit suggestions or recommended changes with respect to the Portal to Amwins ("Feedback
"). You hereby assigns to Amwins all right, title, and interest in, and Amwins is free to use, without any attribution, restrictons or compensation, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Amwins is not required to use any Feedback.
6. Third-Party Services.
" means online applications, services, software, tools, data, content, materials and information, in any form or medium, that are not proprietary to Amwins and incorporated into, integrated into, embedded within and/or otherwise accessed and used by or through the Portal. You acknowledge and agree that performance of each Third-Party Service is the sole and exclusive obligation of the respective Third-Party Service Provider and (i) you shall seek recourse exclusively against the respective Third-Party Service Provider with respect to performance (or lack thereof) of such Third-Party Service and (ii) Amwins does not warrant or support any Third- Party Services.
7. Your Responsibilities.
You are responsible and liable for all uses of the Portal and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall take reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Portal, and shall cause Authorized Users to comply with such provisions.
8. Confidential Information.
You acknowledge and agree that in the course of performing under this Agreement and/or using the Portal, you will learn confidential, trade secret, and proprietary information concerning Amwins and its business, programs and procedures (“Confidential Information
”) including, but not limited to, information pertaining to pricing information, future business plans, technical information, and any other material or information provided by Amwins to you in connection with this Agreement and/or your use of the Portal and/or the Third-Party Services. Confidential Information shall not include any information, which (i) at or prior to the time of disclosure by Amwins was generally available to the public through no breach of this Agreement, (ii) was available to the public on a non-confidential basis prior to its disclosure by Amwins to you, or (iii) was made available to the public from a third party, provided that such party did not obtain or disseminate such information in breach of any legal obligation. Such disclosure shall in no way be construed to constitute a
license to use the Confidential Information other than as expressly specified herein, nor shall anything herein be deemed by implication or otherwise to convey to you any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights of Amwins. You agree to keep the Confidential Information in strict confidence, not to use any Confidential Information for your own purposes or for the benefit of any third party, and not to demonstrate or disclose, directly or indirectly, in any form or manner the Confidential Information to any person or entity other than the Authorized Users. You shall require each Authorized User to agree in writing to abide by provisions no less protective than the provisions of this Section 8. You shall treat as confidential and safeguard any such Confidential Information in at least the same manner as that in which you safeguard your own confidential or proprietary material or information of like kind.
You represent and warrant that: (i) you are duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) you have the full right, power and authority to enter into and perform your obligations under this Agreement; (iii) the individual that has accepted the terms and conditions of this Agreement has been duly authorized by all necessary corporate or organizational action; (iv) this Agreement constitutes a legal, valid and binding obligation, enforceable against you in accordance with its terms; and (v) you have obtained all necessary rights and/or consents to access and use all Input Data as contemplated by this Agreement and the inputting, uploading, storing, accessing and/or using of such Input Data shall not misappropriate, infringe or otherwise violate any intellectual property right or other right of any third party.
THE PORTAL, THE THIRD-PARTY SERVICES AND THE DOCUMENTATION ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, AMWINS AND ITS THIRD-PARTY SERVICE PROVIDERS DO NOT WARRANT, GUARANTY OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE THE PORTAL, THE THIRD-PARTY SERVICES AND THE DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, COMPLETENESS OR OTHERWISE. YOU UNDERSTAND THAT, AS A RESULT OF COMPUTER OR COMMUNICATIONS FAILURES OR OTHER REASONS, THE THE PORTAL, THE THIRD-PARTY SERVICES, THE DOCUMENTATION AND THE CONTENT CONTAINED THEREIN MAY BE INACCESSIBLE FROM TIME-TO-TIME WITH OR WITHOUT NOTICE. YOU FURTHER UNDERSTAND THAT THE CONTENT AND FUNCTIONALITY OF THE PORTAL, THE THIRD-PARTY SERVICES AND THE DOCUMENTATION ARE SUBJECT TO MODIFICATION OR ELIMINATION OF SELECTED PARTS FROM TIME- TO-TIME. AMWINS CANNOT AND DOES NOT WARRANT AGAINST HUMAN OR MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PORTAL, THE THIRD-PARTY SERVICES AND THE DOCUMENTATION IS ASSUMED BY YOU.
You agree to indemnify, defend, and hold harmless Amwins and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding based on your or your Authorized Users' (i) negligence or willful misconduct or (ii) use of the Portal, the Third-Party Services and/or Documentation in a manner not authorized or contemplated by this Agreement. In the event Amwins seeks indemnification or defense from you under this provision, Amwins shall promptly notify you in writing of the claim(s) brought against Amwins for which Amwins seeks indemnification or defense. Amwins reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of Amwins’ choice. You may not enter into any third-party agreement, which would, in any manner whatsoever, affect Amwins’ rights, constitute an admission of fault by Amwins or bind Amwins in any manner, without Amwins’ prior written consent.
12. Limitations of Liability.
IN NO EVENT WILL AMWINS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA AND THE LIKE), IN EACH CASE REGARDLESS OF WHETHER AMWINS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH
LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL AMWINS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED $500.
13. Term and Termination.
This Agreement shall commence immediately upon your first Authorized User commencing access and use of the Portal and shall continue unless and until it is terminated in accordance with this Section. Amwins may terminate this Agreement for convenience at any time in its sole discretion upon three (3) days’ prior written notice. You may terminate this Agreement upon written notice to Amwins if Amwins breaches a material term of this Agreement and fails to cure such material breach within forty-five (45) days after receipt of such written notice. Upon expiration or earlier termination of this Agreement, the rights granted hereunder will automatically terminate, provided
, that Amwins may (in its sole discretion) permit you to continue to access and use the Portal solely to service your existing insurance products maintained in the Portal (and you shall not be permitted to create or generate any new business). This Section 13 and Sections 3, 4, 6, 7, 8, 10, 11, 12, 14 and 16 survive any termination or expiration of this Agreement.
14. Equitable Relief.
You acknowledge and agree that a breach or threatened breach of any of its obligations under Section 2, 3, 4 and/or 8 would cause Amwins irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Amwins will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.
15. Force Majeure.
Amwins shall not be liable for delays in performance or for non-performance due to unforeseen circumstances or any events or causes beyond Amwins’ reasonable control, including cyber-attacks, acts of God, war, pandemic, epidemic, fire, flood, weather, sabotage, strikes or labor disputes, civil disturbances or riots or governmental action.
This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement and its interpretation shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflict of laws provisions. Each of the parties hereto consents to the sole and exclusive jurisdiction of any state or federal court located within Mecklenburg County, North Carolina. If any party shall bring an action to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs from the unsuccessful party. You may not assign or transfer any of its rights or delegate any of its obligations hereunder without the prior written consent of Amwins. Any purported assignment, transfer, or delegation in violation of this Section is null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. All notices, instructions, requests, authorizations, consents, demands and other communications hereunder shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (i) by personal delivery (when actually delivered); (ii) by overnight courier (upon written verification of receipt); or (iii) by certified or registered mail, return receipt requested (upon verification of receipt). Unless otherwise designated in writing by you, all notices to you shall be delivered to your principal place of business, attention “Legal Department”. All notices to Amwins shall be addressed as follows: Amwins Group, Inc., 4725 Piedmont Row Drive, Suite 600, Charlotte, NC 28210, Attention: Legal Department. Any party may change the address to which notice is to be given by notice given in the manner set forth above. The parties shall be independent contractors and the relationship between the parties shall not constitute a partnership, joint venture or agency. No party shall have
the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior written consent of such other party.
Last Updated: March 7, 2022