BY USING THIS PORTAL YOU ARE AGREEING TO THE FOLLOWING USER AGREEMENT:
Agent User Agreement
InsCipher, a Utah limited liability corporation ("InsCipher," "our," "us," or "we") with its place of business at 260 South, 2500 West, Suite 301, Pleasant Grove, UT 84062 provides a proprietary insurance software and tax filing solution (the "Platform") that this governed by this Agreement. The Platform simplifies tax calculations, periodic tax filing transactions, and reports (collectively, “Work”) in connection with state agency and state agency subdivision ("States”) requirements. The Platform includes certain agency-facing elements, which may, but need not, include a surplus lines tax filing portal and/or an agency-facing Account (collectively, "Agency Account"). One or more States has invited you to become a registered user of the Platform, or you independently wish to do so, in order to gain access to the Platform.
These Terms of Service (this "Agreement") set forth the legally binding terms for your use of the Platform. By clicking "I AGREE" you agree on behalf of yourself and (if applicable) your organization (collectively, “you” or “Agency”), effective as of the date of acceptance (the "Effective Date"), to be bound by this Agreement.
You are authorized to access and use the Platform only if you agree to abide by all applicable laws and this Agreement. Please read this Agreement carefully and save it. If you do not agree with it, you should discontinue use of the Platform immediately.
1. PLATFORM ACCESS AND AUTHORIZED USERS
1.1 Subject to the terms and conditions of this Agreement, during the Term, InsCipher will use commercially reasonable efforts to provide Agency and Authorized Users access to the Platform. Subject to the terms and conditions of this Agreement, during the Term, InsCipher hereby grants Agency and Authorized Users a non-exclusive, non-sublicensable, non-transferable, worldwide license to access and use the Agency Account, solely for the business purposes as set forth herein.
1.2 Agency may access State-specific elements of the Platform from States that have invited and/or validated Agency. If InsCipher has terminated your account due to nonpayment (if applicable), Term lapse, revocation of state authorization, a violation of this Agreement, or another reason, you are not eligible to access or use the Platform.
1.3 It is solely Agency's responsibility to: (i) maintain current licensing, certification or other requirements and qualifications applicable to Agency and (ii) determine legal and regulatory requirements applicable to Agency, and Agency’s compliance therewith.
1.4 Agency may allow its personnel ("Authorized Users") to use the Platform. Authorized Users shall abide by the terms set forth herein, and Agency shall ensure such compliance. Agency shall immediately notify InsCipher if Agency becomes aware of any violation of this Agreement by any Authorized User. Agency shall be liable for any breach of this Agreement by any Authorized User. Agency shall be solely responsible for the security and confidentiality of Agency's account information, including user names and passwords of Authorized Users, and will ensure that no third party uses or accesses Agency's account. Agency shall immediately notify InsCipher if Agency becomes aware of any unauthorized access to the Platform or any violation of the terms of this Agreement.
2. MAINTENANCE AND AVAILABILITY
2.1 Scheduled system maintenance will take place from time to time, and during such time, the Platform may be unavailable. Emergency maintenance may be required at other times in the event of system failure. We make no representation that the Platform is available or permitted in any particular location.
2.2 Use of the Platform is void where use of the Platform is prohibited. Agency uses the Platform at its own initiative and is responsible for compliance with any applicable laws in connection with Agency's use thereof. InsCipher may also, from time to time, impose limits on the use or access to the Platform in addition to those herein.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Agency will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Platform ("Software"); (ii) modify, translate, or create derivative works based on the Platform or any Software; (iii) use the Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or(v) use any Software or the Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with any Software or the Platform. Software is the Confidential Information of InsCipher, and Agency will comply with Section 5 with respect thereto.
3.2 Agency shall use, and will ensure that all Authorized Users use, the Platform and Software in full compliance with this Agreement and all applicable laws and regulations. Agency represents and warrants that it (i) has accessed and reviewed this Agreement, and any other contractual agreement providing right of access to the Platform, (ii) understands the requirements thereof, and (iii) agrees to comply therewith. InsCipher may suspend Agency's account and access to the Platform at any time and without notice if InsCipher believes that Agency is in violation of this Agreement. Although InsCipher has no obligation to monitor Agency's use of the Platform, InsCipher may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.
3.3 Agency shall furnish all materials necessary to undertake its obligations and responsibilities and shall incur all expenses associated with Agency's provision of its Work. Agency shall be responsible for obtaining and maintaining both the functionality and security of any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
4. NO AGENCY RELATIONSHIP
4.1 Agency acknowledges that nothing in this Agreement, and no transaction conducted through the Platform, shall in any way be construed to establish Agency as an agent, employee or representative of InsCipher. InsCipher is not directly involved in tax filings, or any other transaction between States and Agencies unless under contractual obligation as set forth outside of this agreement. We are a technology and marketplace service provider, not a State or Agency, and act solely as a passive conduit for the submission, review and execution of State tax filings and information sharing. Agency acknowledges that InsCipher is not responsible for, and shall not be liable for, actions taken, or promises made, by States. Agency accepts all risks related to interacting with and transacting with States.
4.3 AGENCY IS SOLELY RESPONSIBLE FOR ITS INTERACTIONS, AND TRANSACTIONS, WITH STATES, AGREES TO LOOK SOLELY TO SUCH STATES FOR ANY CLAIM, DAMAGE OR LIABILITY ASSOCIATED WITH ANY TRANSACTION ENTERED VIA THE PLATFORM, AND EXPRESSLY WAIVES AND RELEASES INSCIPHER FROM ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF ANY ACT OR OMISSION OF ANY SUCH STATES, INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO PERSONAL INJURY OR DESTRUCTION OF PROPERTY.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS
5.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has been, and may be, exposed to, or acquired, business, technical or financial information relating to the Disclosing Party’s business ("Confidential Information"). Confidential Information of InsCipher includes non-public information regarding features, functionality and performance of the Platform and Software. Confidential Information of Agency includes non-public data provided by Agency to InsCipher to enable InsCipher’s provision of access to, and use of, the Platform as well as all content, data and information recorded and stored by the Platform for Agency ("Agency Data"), but explicitly excludes Agency Information (defined below). The terms and conditions of this Agreement, including all pricing and related metrics, are InsCipher’s Confidential Information.
5.2 Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
5.3 With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use, or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
5.4 Notwithstanding Section 5.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
5.5 The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
5.6 Agency Data Contemplated by Section 5.1 should not be confused with data and information collected by InsCipher from States via the Platform ("Other User Data"). Collection and use of Other User Data is a matter between InsCipher and States and is governed by agreements between InsCipher and such States. Agency's right to access Other User Data is limited to such features of the Agency Account for which the applicable State has granted Agency access during the Term.
5.7 Notwithstanding anything herein to the contrary, Agency acknowledges that InsCipher may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
6. PROPRIETARY RIGHTS
6.1 Agency shall own all right, title and interest in and to the Agency Data. InsCipher shall own and retain all right, title and interest in and to (i) the Platform and Software and all improvements, enhancements, and modifications thereto, and (ii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, "InsCipher IP").To the extent Agency acquires any right, title or interest in any InsCipher IP, Agency hereby assigns all of its right, title and interest in such InsCipher IP to InsCipher.
6.2 Agency hereby grants to InsCipher a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise utilize (i) Agency Data to provide the Platform to Agency hereunder and as necessary or useful to monitor and improve the Platform and Software, both during and after the Term, and (ii) any contact information provided by Agency or uploaded to the Platform on behalf of Agency ("Agency Information"), to utilize for any lawful purpose. InsCipher may use, reproduce and disclose Platform-, and Software-related information, data, and material that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Agency or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data, and material will be owned by InsCipher. It is Agency's sole responsibility to back-up Agency Data during the Term, and Agency acknowledges that it will not have access to Agency Data through InsCipher or the Platform following the expiration or termination of this Agreement. No rights or licenses are granted except as expressly set forth herein.
7.1 InsCipher may offer one or more subscription pricing models ("Subscription Model") or (“Service Contract”) for the Platform, differentiated by price ("Subscription Fee") and one or more variables which may, but need not, include subscription term length, functionality and data accessibility. Agency shall not have access to portions of the Platform unless and until Agency purchases a Subscription Model (payment for such purchase shall be immediately due and payable to InsCipher) or enters into a Service Contract via InsCipher’s website, or any other method acceptable to InsCipher in its sole discretion, whereupon Agency shall be granted access to the Platform in accordance with such Subscription Model and/or Service Contract and this Agreement.
7.2 Upon the commencement of each Renewal Term, Agency shall be liable to InsCipher for payment of a Renewal Fee. Agency hereby consents to InsCipher charging any such Renewal Fee to the credit card, or another payment method, associated with Agency's account without the need to provide any further notice or receive any further consent. Each "Renewal Fee" shall equal the Subscription Fee or Renewal Fee, as applicable, due to InsCipher during the previous term as may be increased by InsCipher in its sole discretion; provided, if the Initial Term was greater than one (1) year, for purposes of calculating the initial Renewal Fee the Subscription Fee shall be prorated to one (1) year.
7.3 If payment of any Subscription Fee, Service Contract or Renewal Fee by Agency to InsCipher is (i) not fully credited to InsCipher’s bank account immediately following a reasonable processing period as required by InsCipher’s payment processor, or (ii) canceled, disabled, discontinued or otherwise dishonored in whole or in part, InsCipher may, in addition to any other remedies available hereunder, immediately, and without notice, suspend Agency's and all Authorized Users access to, and use of, the Platform until InsCipher receives full payment of all unpaid amounts, including InsCipher’s cost of collection, including, but not limited to, attorneys' fees and costs. Payment not received by InsCipher when due will be subject to a late payment service charge at 1.5% per month or, if less, the maximum rate allowed by law. All fees paid to InsCipher are final and non-refundable.
8. TERM AND TERMINATION
8.1 Unless earlier terminated as provided herein, this Agreement is effective beginning on the Effective Date and shall continue for the term of the Subscription Model or Service Contract purchased by Agency ("Initial Term"). This Agreement shall automatically renew for additional successive (i) one (1) year periods if the Initial Term is equal to or greater than one (1) year, or (ii) periods equal to the Initial Term if the Initial Term is less than one (1) year (each a "Renewal Term") unless written notice of non-renewal is received by the other party at least sixty (60) days, but not less than thirty (30) days, prior to the expiration of the then-current term.
8.2 In addition to any other remedies it may have, InsCipher may terminate this Agreement upon written notice if the Agency fails to pay any amount when due or otherwise materially breaches this Agreement.
8.3 Upon termination of the Agreement, Agency shall immediately cease all use of and all access to the Platform. Sections 3.1, 5, 6, 8, 10 and 14 shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
9. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED HEREIN, INSCIPHER DOES NOT WARRANT THAT ACCESS TO THE PLATFORM OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE PLATFORM AND SOFTWARE ARE PROVIDED "AS IS," AND INSCIPHER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Agency will defend InsCipher against any claim, suit, demand, or action made or brought against InsCipher by a third party (i) alleging that Agency's or an Authorized User's use of the Platform in violation of this Agreement infringes, misappropriates or otherwise violates the intellectual property rights of such third party, (ii) relating to or arising from Agency's relationship with States, including Tax Filings and Platform Contracts and any Work-related thereto, (iii) relating to or arising from InsCipher’s permitted use of Agency Data,(iv) relating to or arising from Agency's Work, without limitation product liability claims, and will indemnify and hold harmless InsCipher from any damages, losses, liabilities, costs, and fees (including reasonable attorney's fees) finally awarded against InsCipher in connection with or in settlement of any such claim, suit, demand, or action.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL (I) INSCIPHER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER, IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID OR OWED BY AGENCY HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) INSCIPHER HAVE ANY LIABILITY TO AGENCY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER, CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOTINSCIPHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Agency agrees that InsCipher may identify Agency as a user of the Platform and use Agency’s logo and trademark in InsCipher’s promotional materials. Agency may request that InsCipher stop doing so by submitting an email to firstname.lastname@example.org at any time. Agency acknowledges that it may take InsCipher up to 30 days to process such requests.
13. GOVERNING LAW; DISPUTE RESOLUTION
This Agreement is governed in all respects by the laws of the State of Utah, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). The arbitration will be conducted in a city located in Utah County by a single arbitrator knowledgeable in tax filing matters and the commercial aspects of "software as a service" arrangements and intellectual property. The arbitrator will provide detailed written explanations to the parties to support his/her award and regardless of the outcome, each party shall pay its own costs and expenses (including attorneys' fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
14.1 Force Majeure. InsCipher is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions or acts of hackers, internet service providers or any other third party, or acts or omissions of Agency or any Authorized User.
14.2 Severability. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
14.3 Assignment. InsCipher may transfer and assign any of its rights and obligations under this Agreement without consent. The rights granted under this Agreement are unique to Agency, including any State authorizations or validations and may not be assigned absent written consent from InsCipher.
14.4 Integration and Conflict of Terms. This Agreement, along with any existing Service Contract, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. If there is a Service Contract, the Service Contract shall govern the rights and obligations of the Parties as to provisions conflicting with this Agreement.
14.5 Modification. Any modification to this Agreement by InsCipher shall be effective fifteen (15) days after InsCipher first notifies Agency of the modification (via an update delivered through the Platform or via email or other notification) and Agency signifies its acceptance (via email, text or an electronic click-to-accept method).
14.6 Construction. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words "hereof," "hereby," "herein," "hereto," and "hereunder" and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words "include," "includes" or "including" are deemed to be followed by the words "without limitation;"(iii) references to a "Section" are references to a section of this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.
14.7 Notices. All notices under this Agreement will be in writing and, if to InsCipher shall be delivered to the address set forth in the preamble of this Agreement, and if to Agency shall be delivered to the primary address associated with Agency's account. Notice will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.