Marketplace Terms & Conditions
Table of Contents
HAWKSOFT MARKETPLACE PARTNER AGREEMENT
Carefully read the following terms and conditions ("Agreement"). It creates a legally binding agreement between your company ("Partner") and HawkSoft, Inc. ("HawkSoft"). It contains very important information about the Partner's rights and obligations, as well as limitations and exclusions that apply to the Partner's use of the HawkSoft Marketplace ("Marketplace") to promote and distribute Partner's products and services ("Partner's Products", "Products"). Your continued use of Marketplace to promote and distribute Products constitutes acceptance of this Agreement.
If Partner does not agree to terms herein, DO NOT proceed to access or use the Marketplace to promote and distribute Products.
Recitals
Partner desires to offer Partner's Products to insurance agencies that use the HawkSoft Platform as defined below in the Definitions section.
HawkSoft desires to promote Partner's Products on Marketplace for the benefit of HawkSoft's Subscribers.
Definitions
"Access Credentials" means any user name, identification number, password, license or security key, security token, key, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Partner's Products. Access Credentials may be referenced herein and in subsequent communications between the parties and/or HawkSoft customers using Partner's Products as the "Key."
"API" means the application programming interface that supports interoperation of applications with the HawkSoft Services and related Partner's Products.
"Authorized Prospect" means an insurance agency that is a prospect of HawkSoft to whom HawkSoft promotes and provides the HawkSoft Platform and related HawkSoft Services, and to whom HawkSoft has rights to promote and provide the Partner's Products under the terms and conditions of this Agreement.
"Branding Features" means a party's proprietary trade names, service marks, trademarks, logos, and indicia of origin and other distinctive branding features.
"Client Data" is customer data of Subscribers and the End-Users.
"Documentation" means Partner's manuals, instructions, or other materials made generally available by Partner for use with Partner's Products.
"End-User" means any Subscriber and any of its authorized employees, agents, and customers who Subscriber desires to provide with access to the HawkSoft Platform that includes the Partner's Products.
"HawkSoft Services" means the proprietary and other bundled software and related services that HawkSoft licenses to Subscribers and is accessed through the HawkSoft Platform.
"HawkSoft Platform" means software, hardware, and/or cloud services used by HawkSoft to store and deliver HawkSoft's insurance agency management system and Client Data to Subscribers and End-Users.
"Proprietary Materials" means materials to be delivered by one party to the other, or used by a party in connection with the delivery of their respective services, or for the performance of obligations hereunder. Proprietary Materials includes HawkSoft customer data uploaded or accessed in connection with Partner's Products.
"Proprietary Rights" means any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, trademarks, service marks, and other similar rights or interests in intellectual or industrial property. All Proprietary Rights remain with Proprietary Materials.
"Subscriber" means a person or entity that subscribes to the use of HawkSoft Services and has entered into a legally-binding agreement with HawkSoft.
FEE AND PRICING
Fee. Partner shall pay to HawkSoft a fee for placement in the HawkSoft Marketplace ("Fee").
Partner may pay either
- (a) monthly fee of $300.00 (USD), or
- (b) annual fee of $2,400.00 (USD)
Payment Procedures. The applicable Fee and Royalty payable to HawkSoft as references above for any given month shall be due and payable on a monthly basis no later than thirty (30) days from the close of such month during the Term hereof. If paying the annualized Fee, the full payment is due and payable no later than thirty (30) days from the first Effective Date of the Agreement or the yearly anniversary of the first Effective Date.
Pricing. Partner shall have sole authority to establish and request to update, from time to time, the pricing that it will charge to Subscribers for the use of Partner's Products offered through Marketplace.
Taxes and Expenses.Each party shall be responsible for all federal, state, and local sales, use, value-added, excise, duty or property taxes regarding its own services, facilities, and business.Except as otherwise specifically provided herein, each party will bear its own costs and other expenses (including legal fees) relating to the transactions and performance of services contemplated by the Agreement.
Audit Rights. HawkSoft shall be authorized, upon reasonable advance notice, to inspect the Partner's books and records related to the promotion and distribution of Partner's Products on Marketplace.
Promotion and referral of Partner's Products
Subject to the terms and conditions hereof, Partner hereby grants to HawkSoft a non-exclusive right to promote and refer Products, and feature the Products with and into Marketplace and the HawkSoft Platform. Products are to be sold, supported, hosted, and distributed by Partner to allow integrated and seamless access for subscribers through the HawkSoft Platform.
Use of Branding Features provided by either party shall inure solely to the benefit of the providing party.Neither party shall (i) apply for registration of the Branding Features of the other party (or any marks or features confusingly similar thereto) anywhere in the world, (ii) alter, modify or change the Branding Features of the other party in any manner, or (iii) use any of the Branding Features of the other party, except as expressly authorized herein or by prior written approval of such other party.
Access to Key
HawkSoft will provide to Partner the Key to HawkSoft's API, so that Subscribers have access to Client Data and to use Products.
Contracting and Payment Procedures for End-Users
The distribution and sale of Products referred by HawkSoft on Marketplace to the Subscribers shall be provided by Partner to the Subscriber pursuant to Partner's terms of service.Partner shall be solely responsible for billing and collecting amounts charged to such Subscriber.All payments due from a Subscriber for Products shall be payable directly to Partner.
Restrictions
Partner shall not, nor shall it permit or assist others, (i) to modify or fraudulently use the HawkSoft Services; (ii) to process or permit to process the data of any third party that is not expressly authorized herein to access the Products; (iii) to access, alter, or destroy any information of any Subscriber of HawkSoft Services by any fraudulent means or device, or attempt to do so; (iv) reverse engineer, disassemble, decompile, modify or otherwise seek to determine the source code used to provide HawkSoft Services; (v) to make any representation, warranty, guaranty or covenant to any Authorized Prospect on HawkSoft's behalf; or (vi) to create any derivative works based on HawkSoft Services or to access or use the HawkSoft Platform for any purposes other than as permitted under this Agreement, including for competitive analysis or the development, provision, or use of competing services or products.
HawkSoft may not share or disclose to Partner any data related to usage of another partner present in Marketplace. Information related to usage of a Partner is for reconciliation and analytics purposes between HawkSoft and the Partner. HawkSoft will not use Partner data to specifically promote other partners or vendors over Partner.
Reservation of Rights
All rights not expressly granted to the Partner herein are expressly reserved by HawkSoft.Any new features, functionality, corrections or enhancements for the HawkSoft Services suggested by the Partner shall be free from any confidentiality or proprietary restrictions and may be incorporated into subsequent versions of the HawkSoft Platform used to provide the HawkSoft Services or any derivative works thereof by HawkSoft or its customers, free of separate remuneration to the Partner.Partner acknowledges that the software incorporating any such new features, functionality, corrections or enhancements shall be the sole and exclusive property of HawkSoft.
Integration Services
In accordance with a mutually agreed-upon schedule, Partner shall have responsibility for providing the design and engineering services necessary to integrate data between Partner's Products and the HawkSoft Platform; however, each party shall, during the term, provide cooperation and access to each other's API and technical resources as reasonably necessary to facilitate integration work. Each party shall be responsible for its own costs to secure and/or provide such integration services.The parties will work together to complete all tasks required to integrate both party's services. Each party will deliver to other party any software tools, related documentation, and Access Credentials necessary for both parties to exercise their license rights, hereunder.Access Credentials will be deemed the Confidential Information of the respective party.
Internet Data Centers
Each party agrees to provide its portion of the integrated services contemplated hereunder through Internet Data Centers that are configured consistent with reasonable and prudent safeguards for fireproofing, power and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions.Each party may outsource its Internet Data Center operations to subcontractors provided that each such party shall be, and remain, responsible to the other party for the performance of all of its respective obligations, regardless whether any such obligations are outsourced.
Security
Each party shall implement reasonable and appropriate security procedures consistent with prevailing industry standards to protect Client Data from unauthorized access by physical and/or electronic intrusion; however, unless resulting from the failure of a party to perform the forgoing obligations, the parties agree that such party shall not, under any circumstances, be held responsible or liable for situations; (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to such party at the time.Each party will promptly report to the other party any unauthorized access to Client Data upon discovery by the discovering party, and such discovering party will use diligent efforts to promptly remedy any breach of security that permits such unauthorized access.In the event notification to persons included in such Client Data is required, the parties shall work together to provide such notifications.
Marketing and Support Obligations
Partner shall perform the following commitments at its cost and expense, unless otherwise indicated.
Dedicated Contact Person. Partner shall appoint and notify HawkSoft of its dedicated contact person (Name, Email, Phone) who shall coordinate all issues on behalf of Partner which arise out of this Agreement.
Delivery of Access Credentials.Partner shall be responsible for delivering Access Credentials to Subscribers and their End-Users to access and use the Products as provided hereunder.
Assistance with Integration Services.
Both parties shall provide technical assistance and resources as reasonably necessary to permit each other to perform the integration services contemplated hereunder and to be available for consultation by telephone during customary working hours, Monday - Friday, 9:00am to 5:00pm Pacific Time.
Updating of Partner's Services. Partner shall make available to HawkSoft and its Subscribers and End-Users all updates of Partner's Products that Partner generally releases to others.
Technical Support.Partner shall be responsible for delivering technical support to Subscribers and End-Users that is related to Partner's Products.Partner shall assign support contacts to staff such support channels during Partner's customary business hours.
Partner will undertake good faith efforts to generally maintain a sufficient number of support representatives to ensure prompt responses to calls from HawkSoft, Subscribers, and End-Users.Partner will use its commercially reasonable efforts to answer questions and correct reported errors that are reproducible and caused by Products (or to provide suitable temporary solutions or workarounds for errors) during the initial response.If HawkSoft states that the reported error is substantial and material to the use of the Products, or that the reported error causes the Products to be inoperable, Partner will use its commercially reasonable efforts to correct the error, within a commercially reasonable time after Partner's initial response.
Hosting. Partner is responsible for providing a secure and stable environment for hosting and making available the Products to Subscribers and End-Users in accordance with the terms of the Agreement.
Publicity. Partner must obtain prior written approval from HawkSoft to use HawkSoft's name in marketing and/or publicity campaigns.
Limited Warranty
Partner warrants that Products shall conform to and operate substantially in accordance with the Documentation provided as part of Products and as set forth herein;
HawkSoft warrants that HawkSoft Services shall conform to and operate substantially in accordance with the Documentation provided as part of HawkSoft Services and as set forth herein.
Representations and Warranties; Indemnities
Each of the parties represents and warrants to the other that such party has full legal right, power, and authority to enter into and perform this Agreement.
Each party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other party, its affiliates, successors, assignees and each of their officers, directors, agents, and employees (each an "Indemnified Party") from and against any and all claims, costs, damages, losses, liabilities, actions, recoveries, judgments and expenses (including actual attorneys' fees and expenses regardless of whether litigation was commenced) sustained or incurred by the other party in connection with any third-party claim arising out of or in connection with; (a) the actual or alleged infringement or misappropriation of a third party's patent, copyright, trademark, trade secret or other similar rights related to the Indemnifying Party's own property, Proprietary Materials, Branding Features, or other materials supplied by the Indemnifying Party or the Indemnified Party, a Subscriber, or an End User's use thereof, or (b) the actual or alleged violation of any laws, ordinances, rules, and regulations governing the Indemnifying Party's duties or responsibilities under this Agreement; (a "Claim"), provided that: (i)HawkSoft or Partner, as applicable, promptly notifies the Indemnifying Party in writing of the claim promptly upon becoming aware of such Claim; (ii) the Indemnifying Party shall be provided the opportunity to have exclusive control over the settlement or defense of any action to which the Claim relates provided that no settlement shall require any payment by or assess any liability against any Indemnified Party without such Indemnified Party's written consent; and (iii) the Indemnified Party cooperates with the Indemnifying Party, at the Indemnifying Party's cost and expense,in every reasonable way.Once given notice of such Claim, if the Indemnifying Party does not defend any such Claim, the Indemnified Party may take any of the above actions and shall be fully indemnified by the Indemnifying Party. The Indemnified Party may monitor, at its own expense, such defense and any settlement discussions directly or through counsel of its choice.
Warranty Disclaimers
EXCEPT AS EXPRESSLY SET FORTH ABOVE, TO THE EXTENT ALLOWED BY LAW, EACH PARTY ON BEHALF OF ITSELF AND ITS SUPPLIERS HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY.NEITHER PARTY WARRANTS NOR GUARANTEES THAT THE OPERATION OF THE HAWKSOFT PLATFORM OR THE PERFORMANCE OF THEIR RESPECTIVE ONLINE FUNCTIONS AND WEB-BASED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.NEITHER PARTY GUARANTEES THAT DATA SUBMITTED OR HELD IN STORAGE ON OR THROUGH ITS SYSTEMS ASSOCIATED WITH THE INTERNET WILL BE SECURE FROM UNAUTHORIZED ACCESS.FURTHER, EACH PARTY ACKNOWLEDGES AND AGREES THAT THE INTERNET IS NOT ESTABLISHED OR MAINTAINED BY THE OTHER PARTY, THAT NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND THAT NEITHER PARTY IS LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT WEB-BASED SERVICES, PARTNER'S WEB SITE, THE HAWKSOFT PLATFORM, OR THE PERFORMANCE OF THEIR RESPECTIVE ONLINE FUNCTIONS.EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION THAT IS NOT EXPRESSLY SET OUT HEREIN.
Disclaimer of Incidental and Consequential Damages
EXCEPT FOR INDEMNITIES AND OBLIGATIONS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Reciprocal Disclosure of Confidential Information
The parties anticipate that each may disclose or will have access to confidential, proprietary and personal information to the other as well as Subscribers and End-Users.Accordingly, the parties desire to establish in this Section terms governing the use, disclosure and protection such confidential, proprietary and personal (hereafter, "Confidential Information").For purposes hereof, "Confidential Information" means and includes the terms and conditions hereof, and other information(i) if written, graphic, machine readable, or other tangible form, is marked as "Confidential" or "Proprietary," (ii) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential, (iii) is disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information that relates to the subject matter of this Agreement, including business models and plans, and technical information and data, and (iv) all Client Data including Subscriber, End-User and related contact, business and prospect information stored, available or accessed through the HawkSoft Platform.Confidential Information is to be used only for the purposes of this Agreement and the parties shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information; in any case using no less than a reasonable degree of care.Confidential Information received hereunder shall be used only as reasonably required to perform obligations under this Agreement and only to its Subscribers' employees, End Users, and customers who have a need to know for such purposes.The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is rightfully in the possession or control of any party at the time of its disclosure, hereunder, without an obligation of confidentiality; (ii) is, or becomes publicly known, through no wrongful act of either party; (iii) is rightfully received by a party from a third party free to disclose it without any obligation of confidentiality; or (iv) is independently developed without reference to or use of Confidential Information.
Injunctive Relief
The parties hereby agree that any breach of any provision of this Agreement regarding confidentiality or protection of Confidential Information, including Proprietary Rights, would constitute irreparable harm, and that the aggrieved party may be entitled to specific performance and/or injunctive relief in addition to other remedies at law or in equity without the necessity of posting bond.
Term
The term of this Agreement shall begin upon acceptance (digital or written) and continue perpetually.
Automatic Termination
This Agreement may be terminated immediately by notice to the other party upon the institution of insolvency, bankruptcy, or similar proceedings by or against the other party, any assignment or attempted assignment by the other party for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for the other party.
Termination for Cause or Convenience
Either party may terminate this Agreement and all rights granted herein for convenience upon 90 days' notice to the other party. Either party may terminate this Agreement for a material breach by the other party which remains uncured after thirty (30) days from receipt of notice describing the nature of the breach.
Effect of Expiration or Termination
Upon the expiration or termination hereof, HawkSoft shall cease to promote Partner's Products and may, at HawkSoft's discretion, terminate integration with an into the HawkSoft Platform.The expiration or termination hereof will not necessarily cause the rights of existing End-Users to terminate, and Partner will have the right to assume responsibility for continued delivery of Partner's Products to such End-Users who elect to continue such service under terms and conditions that are mutually agreeable between the Partner and the End-Users.Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Partner of its obligation to pay all fees that have accrued or are otherwise owed to HawkSoft under this Agreement prior to the date of termination. Upon termination or expiration, HawkSoft shall have no obligation to support, interface, or cooperate with Partner.
Upon termination of this Agreement for any reason, each party will return, release or destroy, as applicable, all property and Confidential Information, including Client Data, of the other party and all Subscribers and End-Users in its possession or control; and will provide a certification to the other, upon request that such has occurred.
Arbitration
Except for actions to protect Proprietary Rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the Arbitration Service of Portland ("ASP") then in effect.There shall be one arbitrator, and such arbitrator shall be chosen in accordance with ASP rules.The arbitration shall take place in Portland, Oregon.The arbitrator shall apply the laws of the State of Oregon to all issues in dispute.The findings of the arbitrator shall be final and binding on the parties and may be entered in any court of competent jurisdiction for enforcement. Each party agrees that, any provision of applicable law notwithstanding, the arbitrator shall have the authority to award legal fees and costs to the prevailing party in the arbitration.
Jurisdiction and Venue
for an original action, the state and federal courts located in MULTNOMAH COUNTY IN THE STATE OF OREGON shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.
Notices
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section.Such notice will be deemed to be given when received, subject to the confirmation provided herein.
Assignment
Neither party shall assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without the other party's prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
Continuing Obligations
The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money hereunder.
Authority
Neither party shall have authority to enter into agreements of any kind on behalf of the other party and neither party shall have the power or authority to bind or obligate the other party in any manner to any third party.
Force Majeure
Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, terrorism, fires, riots, wars, embargoes, Internet disruptions, unauthorized access to data, or communications failures. Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other.
Last Revision: October 31, 2022