IMPORTANT READ CAREFULLY
This is an agreement (the “Agreement”) between you, as a broker (herein referred to as the “Broker”) and Assumption Mutual Life Insurance Company (herein referred to as “Assumption Life”). This Agreement describes your responsibilities and obligations and states Assumption Life’s responsibilities and limited liability related to the subject matter of this Agreement. Assumption Life may at any time, and at its discretion, modify this Agreement, and may discontinue or change the services offered.
Assumption Life has developed an online platform called Marketplace Solution which may be accessed by Broker to customize web-based storefronts that will be used by Broker to promote, illustrate, and offer Assumption Life insurance products. Subject to the terms and conditions of this Agreement, you may access Marketplace Solution to customize and use the storefronts.
IF YOU DO NOT ACCEPT THE PROVISIONS OF THIS AGREEMENT, YOU WILL NOT BE PERMITTED TO USE MARKETPLACE SOLUTION OR THE STOREFRONTS.
In this Agreement:
- Account means the account used by Broker to access Markeplace for the use and customization of the Storefronts.
- Broker Materials means any Content or Marks owned by Broker and provided or otherwise used or made available to Assumption Life by Broker for the use and customization of the Storefronts.
- Content means any text, pictures, sound, graphics, video, logos, hyperlinks, toolbars, navigational elements, interactive elements, database data or other data.
- End User means Broker and any of its employees, brokers, sales agents, contractors, consultants and customers that Broker permits to access and use Marketplace Solution and Storefronts.
- Intellectual Property Rights” means:
- any and all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law (including moral rights); (iii) trademark law including the Marks; (iv) design patent or industrial design law; (v) any other statutory provision or common law principle applicable to this Agreement, including trade secret law, which may provide a right in either Content, drawings, materials, research, specifications, ideas, formulae, algorithms, concepts, inventions, processes or know-how generally, or the expression or use of such, Content, drawings, materials, research, specifications, formulae, algorithms, concepts, inventions, processes or know-how;
- any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing; and
- all licenses and waivers and benefits of waivers of the intellectual property rights set out in (a) and (b) above, all future income and proceeds from the intellectual property rights set out in (a) and (b) above, and all rights to damages and profits by reason of the infringement or violation of any of the intellectual property rights set out in (a) and (b) above.
- Marketplace Solution means Assumption Life’s proprietary web-based sales ecosystem platform and software products through which Broker may create and customize the Storefronts to promote, illustrate and offer Assumption Life’s Products to clients. The Marketplace Solution contains and includes various web-based applications, systems and electronic tools.
- Marks means any trademarks, service marks design marks, logos, brands, slogans, tradenames, business names and corporate names.
- Personal Information means personal information as defined in the Personal Information Protection and Electronic Documents Act (Canada), and includes equivalent information under any other similar legislation relating to the protection of privacy that applies to a person.
- Product means all productsoffered by Assumption Life through Markeplace Solution.
- Storefront means Assumption Life’s proprietary web-based platform and software that Broker may customize to create a dynamic website that promotes and explains the features, advantages and benefits of Assumption Life’s Products to clients, including all electronic data embodied therein and any Updates
- Support is defined in Section 7(a).
- Updates means such enhancements, modifications, error corrections and maintenance releases to Marketplace Solution, or Storefronts.
Other capitalized terms have the meanings given below.
2. Description of Marketplace Solution
- Marketplace Solution is Assumption Life’s web-based sales ecosystem that offers Assumption Life’s Products for Broker to promote to its clients.
- Pursuant to the terms and conditions of this Agreement, Broker will have the ability to access Markeplace Solution to create and customize Storefronts for each Product it wishes to promote to its customers.
- Each Storefront is designed to educate the clients on the Products.
- Each Product will be promoted by Broker on a separate URL chosen by Broker and approved by Assumption LIfe.
- Assumption Life has complete and exclusive control of all aspects of Markeplace Solution and the Storefronts, including the development, building and hosting of the Storefronts, and any amendments thereof.
- Assumption Life in its sole discretion may at any time change, amend, modify or correct the content of Markeplace Solution and the Storefronts, without prior notice to Broker.
3. Term and termination
- Term. This Agreement is for an indefinite term, subject to termination as provided herein, unless otherwise terminated pursuant to this Agrement.
- Termination. Assumption Life may terminate this Agreement at its sole discretion, at any time, immediately upon giving notice of termination to Broker.
- Automatic termination. This Agreement shall automatically terminate if Broker ceases to be a registered broker of Assumption Life through a Managing General Agent’s contract, breaches any terms of this Agreement, or breaches any terms of other agreements it may have with Assumption, at any time.
- Broker’s Obligations. All of Broker’s obligations under this Agreement shall survive termination and Assumption Life may exercise any rights and remedies against Broker as provided hereunder.
4. Grant of Access
- Access Right. Subject to the terms and conditions set forth herein, Assumption Life hereby grants to Broker a non-exclusive, revocable, non-transferable, non-sublicenseable right to access and use Marketplace Solution and the right to access and use and permit its End Users to access and use the Storefronts, solely for the purpose of promoting the sale of the Products to clients.
- Availability. Assumption Life will endeavor to provide access to Marketplace Solution and the Storefronts 24 hours a day, seven days a week. Assumption Life cannot guarantee access in the event of system outages, breakdowns, or similar problems that may occur to interfere with access to Marketplace Solutions or the Storefronts.
- Broker Customization. Assumption Life may, from time to time, permit Broker to customize the Storefronts by inserting Broker’s URL, a contact telephone number, Broker’s logo, and such additional elements as Assumption Life may, in its sole discretion, decide to enable.
- Exclusive Control. Assumption Life controls access to Marketplace Solution and the Storefronts and has sole discretion to determine the Products available through Marketplace Solution and has the unfettered discretion to grant and revoke access to Broker to Marketplace Solution and the Storefronts.
- Updates and Changes. Assumption Life reserves the right to modify or terminate Marketplace, the Storefronts, the Products and Solutions, without liability of any kind to Broker.
- Use. Assumption Life may prescribe policies, procedures and standards for use of Marketplace Solution and the Storefronts, from time to time and Broker agrees to abide by them.
5. Restrictions on Use
- Transfer of Account. Broker shall not transfer, sell, lease or permit its Account to be used by any entity or person other than as provided under this Agreement.
- Protection of Account. Broker must protect the confidentiality of the Account and its password. It is Broker’s responsibility to inform Assumption Life when the Account or its password has been compromised. Broker is responsible for all transactions carried out using the Account and password.
- Restrictions. Broker shall not (directly or indirectly, in whole or in part):
- provide access to Marketplace Solution or the Storefronts to anyone other than an authorized End User;
- sublicense, distribute, pledge, lease, rent or commercially share Marketplace Solution the Storefronts or any of Broker’s rights herein;
- copy Marketplace, the Storefronts and the Products;
- modify, translate, reverse-engineer, decrypt, decompile, disassemble, create derivative works based on, reverse-assemble, reverse-compile, recompile, make extracts of Marketplace Solution, the Storefronts and the Products or otherwise attempt to discover the Assumption Life source code or underlying ideas or algorithms;
- use or introduce any device, software or routine that interferes or attemps to interfere with the operation of Marketplace Solution or any Storefront; or
- access Marketplace Solution, the Storefronts and the Products to build, or permit the building of, a competitive products or services or copy any ideas, features or functions of Marketplace Solution, the Storefronts and the Products.
6. Intellectual Property Rights
- Assumption Life is the owner of Assumption Life’s Marks, Marketplace Solution, the Storefronts the Products and the Updates and all Intellectual Property Rights therein excluding Broker Materials. Nothing in this Agreement shall be construed so as to grant, transfer, assign or otherwise convey to Broker any right, title or interest in or to Assumption Life’s Marks, Marketplace Solution, the Storefronts, the Products or the Updates or the respective Intellectual Property Rights, except as expressly outlined in this Agreement.
- Broker shall take all reasonable precautions to protect the Intellectual Property Rights of Assumption Life in Assumption Life’s Marks, Marketplace Solution, the Storefronts, the Products and the Updates.
- Assumption Life shall have sole ownership of all discoveries, developments and improvements, made, conceived or reduced to practice in the course of any activities conducted pursuant to this Agreement pertaining to Marketplace Solution, the Storefronts, the Products or the Updates ("Assumption Life Improvements"), and all Intellectual Property Rights relating to the Assumption Life Improvements. Broker shall promptly disclose any Assumption Life Improvements to Assumption Life in writing. Broker hereby irrevocably assigns to Assumption Life all right, title and interest in and to any such Assumption Life Improvements and all Intellectual Property Rights in the Assumption Life Improvements.
- Broker will not file any intellectual property application of any kind with respect to Marketplace Solution, the Storefronts, the Products, the Updates, or Assumption Life Improvements. Broker will not apply for, register or use any Marks which are confusingly similar to any Assumption Life Marks.
- Broker will not, at any time, directly or indirectly, call into question or dispute the ownership, validity or enforceability of Assumption Life’s Intellectual Property Rights in Marketplace Solution, the Storefronts, the Products, the Updates, the Assumption Marks or the Assumption Life Improvements.
- Assumption Life’s and Broker’s Marks are the sole and exclusive property of Assumption Life or Broker, as applicable. Broker hereby grants to Assumption Life a non-exclusive, non-transferable, royalty-free, worldwide, fully paid-up right and licence to use the Broker’s Marks solely in connection with the operation and use of Marketplace Solution, the Storefronts, the Products and the Updates.
- Broker hereby grants to Assumption Life a non-exclusive, non-transferable, royalty-free, worldwide, fully paid-up right and licence to copy, modify (including, the right to make derivative works of), distribute, display and use any Broker Materials solely in connection with the operation and use of Marketplace Solution, the Storefronts, the Products and the Updates.
- Upon any termination of this Agreement for any reason, Broker will immediately cease all use of Assumption Life’s Marks, Marketplace Solution, the Storefronts, the Products, the Updates and the Broker will return all related materials to Assumption Life within five business days.
- Assumption Life Responsibilities. Assumption Life will provide the following support services to Broker with respect to Marketplace Solution, the Storefronts and the Products (“Support”):
- Telephone Support. Telephone support consists of telephone contact with a member of Assumption Life’s staff at 1-855-853-6040 during Assumption Life’s normal business hours from 8:00 a.m. through 5:00 p.m. Atlantic Time, Monday through Friday, excluding holidays observed by Assumption Life. Telephone support will cover basic Marketplace Solution, Storefronts and Products capabilities, functionality and characteristics and basic problem resolution.
- Email Support. Assumption Life will provide electronic mail assistance by responding to Broker-submitted electronic mail inquiries made to email@example.com about basic Storefront and Product capabilities, functionality and characteristics and basic problem resolution.
- Response Time. Assumption Life will use commercially reasonable efforts to respond to Marketplace Solution, Storefronts or Products problems and errors reported by Broker to Assumption Life according to problem severity as determined by Assumption Life.
- Broker Responsibilities. Broker, or its delegate, will be the primary point of contact to interact with End Users with respect to Support. It is Broker’s responsibility to provide the initial response (and any follow-up response as appropriate) to an End User-initiated support request. Broker will gather initial problem and/or failure information, answer Storefronts, Products and Solutions usage questions, perform problem isolation and identification and escalate unresolved problems to Assumption Life. Assumption Life’s obligations to perform Support is subject to Broker providing: (i) a detailed problem description delivered promptly; (ii) a method for repeatedly reproducing the problem; (iii) reasonable continuous access to Broker and End User as necessary to perform Support hereunder.
- Exclusions. Assumption Life will have no obligation to support: (i) Marketplace Solution, Storefronts and Products problems caused by Broker’s negligence or failure to use Marketplace Solution, the Storefronts and the Products in the manner intended, (ii) use of Marketplace Solution, the Storefronts and the Products other than as specified herein, or (iii) any website, system or portal other than Marketplace Solution, the Storefronts and the Products. Support provided by Assumption Life under this Agreement is limited to the telephone support and email support specified above.
8. Broker Responsibilities
- Unauthorized Access. Broker shall use commercially reasonable efforts to prevent unauthorized access to or use of Marketplace Solution, the Storefronts and the Products and shall notify Assumption Life immediately of any such unauthorized access or use.
- Quality of Information. Broker will ensure that all information that it and its End Users transmit and receive using Marketplace Solution, the Storefronts and the Products complies with all applicable laws, rules and regulations. Broker is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Broker Materials and Assumption Life assumes no responsibility for the deletion, correction, destruction, loss or infringement of or for failure of Marketplace Solution or the Storefronts to store, any of the Broker Materials.
- End User Disclosure. Broker assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Storefronts, the Products or the Solutions and any products or services described therein, as well as any rules, terms or conditions of use.
- Non-performance by Broker. Delay or failure by Broker to fulfill its responsibilities under this Agreement will release Assumption Life from its obligations under this Agreement to the extent Assumption Life is adversely affected by such Broker delay or failure.
- Compliance with Laws. Broker shall comply with all applicable local, provincial and federal laws in promoting, using or operating Marketplace Solution, the Storefronts or the Products, including, but not limited to, the Personal Information Protection and Electronic Documents Act (Canada) and any other applicable privacy legislation as may be enacted from time to time. Broker shall not send unsolicited mass e-mail to any client, customer or account that may be in contravention of Canada’s anti-spam legislation.
9. Limitation of Liability
- “As is”, “as available” basis. Broker agrees that Marketplace Solution, the Storefronts and the Products are provided by Assumption Life on an “as is”, “as available” basis, and that use of Marketplace Solution, the Storefronts and the Products is at Broker’s sole risk. Assumption life disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, as well as warranties arising by usage of trade, course of dealing or course of performance.
- Direct damages. Except for liability arising from Assumption Life’s indemnification obligations set forth in this Agreement, Assumption Life shall have no further liability for damages hereunder in connection with this Agreement, whether in an action in contract, tort (including negligence) or other legal theory caused by failure to deliver, non-performance, defects, breach of warranty or otherwise.
- Disclaimer. Assumption Life does not guarantee continuous service, service at any particular time, or integrity of data, information or content stored or transmitted via Marketplace Solution, the Storefronts, the Internet or other network.
- Consequential damages. Neither party shall be liable whether in an action in contract, tort (including negligence) or based on a warranty or other legal theory, in any way to the other party or any other person for any lost profits or revenues, loss of use, loss of data or similar economic loss, or for any punitive, indirect, incidental, consequential or similar damages of any nature whether foreseeable or not.
- Assumption Life Indemnification Obligations. Assumption Life has the following indemnification obligations to Broker:
- Defending a Claim. Assumption Life shall defend, at its own expense, any claim, suit or proceeding (each a “Claim”) brought against Broker, its directors, officers or employees (collectively the “Broker Indemnitees”) by any third party to the extent such Claim is based upon a claim that Marketplace Solution, the Storefronts or the Products infringe any Intellectual Property Rights, existing on the effective date of this Agreement, or on the date of release of an update, if the Claim relates to the Update.
- Payment of costs and damages. Assumption Life shall pay all costs and damages finally awarded against any Broker Indemnitee by a court of competent jurisdiction as a result of any such Claim; provided Broker (1) promptly notifies Assumption Life in writing of such Claim; (2) promptly gives Assumption Life the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Assumption Life’s own choosing (provided that Broker shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (3) gives assistance and full cooperation for the defense of same.
- Limitations of Assumption Life’s Indemnification Obligations. Notwithstanding any of the foregoing, Assumption Life assumes no liability for infringement claims arising from (1) any use of Marketplace Solution, the Storefronts, the Products or the Updates not authorized under this Agreement, (2) any modification of Marketplace Solution, the Storefronts, the Products, or the Updates not authorized by Assumption Life in writing, or (3) any content, data or information provided or supplied by an End User.
- Broker Indemnification Obligations. Broker has the following indemnification obligations to Assumption Life:
- Defending a Claim. Broker shall defend, at its own expense, any Claim of third parties alleging misappropriation or infringement of Intellectual Property arising from the use, display or publication of Broker Materials and/or Broker’s Marks, the Broker’s domain names or the Broker’s use in connection with Marketplace Solution, the Storefronts, the Products or the Updates of services and information not provided by Assumption Life.
- Indemnification. Broker shall indemnify, defend and hold harmless Assumption Life from and against any Claim against Assumption Life, its directors, officers or employees and agents resulting from Broker’s alleged misappropriation or infringement of Intellectual Property arising from the use, display or publication of Broker Materials and/or Broker’s Marks, the Broker’s domain names or the Broker’s use in connection with Marketplace Solution, the Storefronts, the Products or the Updates of services and information not provided by Assumption Life.
- Assumption Life’s cooperation. Assumption Life agrees to reasonably cooperate with and assist Broker in the defense or settlement of any Claim. Assumption Life shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation or assistance requested by Broker, but Broker will not be liable for any costs or expenses incurred without its prior written authorization.
- Assumption Life to notify Broker. Promptly after receipt by Assumption Life of a threat of any Claim, or a notice of the commencement or filing of any Claim, against which Assumption Life may be indemnified hereunder, Assumption Life shall give written notice thereof to Broker, provided that failure to give or delay in giving such notice to Assumption Life shall not relieve Broker of any liability it may have to Assumption Life hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. Broker shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, Assumption Life may participate in the defense of any such claim or suit at its own expense.
- Personal Information. If in the course of operating or using Marketplace Solution, the Storefronts or the Products, or providing advice to customers for the operation and use of the Storefronts, the Products or the Solutions, Broker obtains or accesses Personal Information about an individual, including without limitation, a customer or potential customer, Broker agrees to treat such Personal Information in compliance with all applicable federal or provincial privacy or protection of personal information laws and to use such Personal Information only for the purposes of providing advice to customer and operating and using the Storefronts, the Products or the Solutions.
- Indemnity. Broker shall indemnify, defend and hold harmless Assumption Life from and against any third party claims against Assumption Life, its directors, officers or employees and agents resulting from the use and disclosure by Broker of its customers’ Personal Information.
12. Dispute resolution
- Governing Law. This Agreement is be governed by and shall be construed and enforced in accordance with the laws of the Province of New Brunswick and the federal laws of Canada applicable therein, without regard to conflicts of laws principles.
- Arbitration. Except as expressly set forth in this section and subject to subsection (d) below, all disputes, controversies and claims arising under, out of, in connection with, or in relation to this Agreement, Marketplace Solution, the Storefronts or the Products, or any related matters (collectively "Disputes" and each a "Dispute") will be referred to and finally resolved by binding arbitration. There will be a single arbitrator, and the arbitration will be private and confidential. The arbitration will be held at Moncton, New Brunswick or at any other location as agreed between the Broker and Assumption Life. Any award rendered in an arbitration is final and binding and judgment on the award may be entered in any court having jurisdiction for its enforcement. This subsection (b) does not apply to a Dispute based upon infringement, misappropriation or violation of Intellectual Property Rights.
- Court Litigation. If and to the extent that, and for any reason, a Dispute is not subject to arbitration as set forth in subsection (b), then subject to subsection (d) the Dispute will be resolved before the New Brunswick Court of Queen’s Bench or Small Claims Court, as the case may be, and Broker and Assumption Life each hereby irrevocably submits and attorns to the original and exclusive jurisdiction of those courts in respect of all of those Disputes and irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to conduct of any such suit, action or proceeding in any such courtand further agrees not to plead or claim that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.
- Informal Dispute Resolution. Before Broker commences arbitration or litigation regarding a Dispute: (i) Broker shall give notice of the Dispute to Assumption Life’s representatives at 1-800-455-7337 and allow Assumption Life at least 30 days to investigate and attempt to resolve the Dispute; and (ii) upon request by Assumption Life during the 30 day period Broker will participate in good faith discussions regarding the Dispute with a view to resolving the dispute in a reasonable manner.
13. General provisions
- Professional advice. Marketplace Solution, the Storefronts, and the Updates do not purport to offer any type of advice, whether financial, accounting, tax-related or legal.
- Financial representation. Any representations of a financial nature contained on Marketplace Solution, the Storefronts or the Products, including rates of return for insurance products, investment products, interest rates and unit values, reflect the conditions prevailing on the date on which they were incorporated into Marketplace Solution, the Storefronts or the Products. Although this information is updated regularly, it is impossible to guarantee that information of a financial nature will always be accurate, complete and up to date at the time Broker visits Marketplace Solution, the Storefronts or the Products.
- Relationship. The parties acknowledge that that nothing contained in this Agreement shall be construed to place Assumption Life and Broker in the relationship of principal and agent, master and servant, partners, contractors, or joint venturers. Neither party shall have, expressly or by implication, or represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Equitable Remedies. Broker acknowledges that failure to comply with the provisions of this Agreement may result in irreparable harm to Assumption Life for which a remedy at law would be inadequate, and therefore, in the event of the breach or threatened breach by Broker of its obligations under this Agrement, Assumption Life will be entitled to seek equitable relief in the form of specific performance and/or an injunction for any such actual or threatened breach, without the posting of a bond, in addition to the exercise of any other remedies at law and in equity.
- Certain Rules of Interpretation. in this Agreement, (i) the headings are inserted only for convenience and are not to be construed as part of this Agreement, (ii) words importing the singular include the plural and vice versa, and (iii) references to a Section followed by a number or letter refer to the specified section of this Agreement.
- Entire Agreement. This Agreement supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof constitutes the sole and entire agreement between the parties with respect to the the subject matter hereof.
- Distribution contract. This Agreement does not amend, modify or cancel any prior in force and effect agreement between Assumption Life and Broker
- Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the provisions shall remain in full force and effect. The invalid or unenforceable provision shall be modified so as to render it enforceable while giving effect, as nearly as possible to the original intent of the parties.
- Waiver. No failure or delay on the part of Assumption Life to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by Assumption Life preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by Assumption Life to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Force Majeure. Assumption Life shall have no liability under this Agreement for failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any cause beyond Assumption Life’s reasonable control.
- Notice to Assumption Life. Any notice or other communication to be given to Assumption Life under or pursuant to this Agreement or in any way concerning this Agreement shall be sufficiently given if reduced to writing and delivered to:
Sales and Marketing Department
770 Main Street
P.O. Box 160
Moncton NB E1C 8L1
By phone: 1-800-455-7337
Via our website: https://www.assomption.ca/en/Individuals/About-Us/Contact-Us
14. Notice to Broker.
Any notice or other communication to be given to Broker under or pursuant to this Agreement or in any way concerning this Agreement shall be sufficiently given if reduced to writing and delivered to a representative, agent or employee of Broker or sent by email, facsimile or other electronic communication to Broker’s last known email address, facsimile or electronic address.