Master Subscription Agreement
- Solution Providers -
Last modified: February 10, 2021
This Master Subscription Agreement (“MSA”) sets forth the terms and conditions of your use of the Services offered by Nion Network, LLC or its subsidiaries (“Company”). Additional terms may also be set forth in the writing between parties for each transaction. In the event of a conflict between the MSA and a transaction specific terms agreed by both parties in writing, the conflicting term(s) in the transaction terms will not be considered an amendment to the MSA but the conflicting term(s) in the transaction terms will only apply to that individual transaction.
READ THIS MSA CAREFULLY BEFORE SIGNING UP AND/OR SIGNING AN ORDER FORM, WHICHEVER APPLIES. BY DOING SO, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS MSA.
“Growth Network Program” means the business framework that is offered by the Company, to help any individual or entity expand their business reach and explore business opportunities in countries other than their origin.
“Partner” or “you” or “your” or “Solution Provider” refers to the individual or entity that has or a business or a product offered to any individual or business within the insurance industry; and that desires to engage in the platform of the Company to promote its products and services, to generate leads and explore business opportunities with regard to its Products according to the terms and conditions herein.
“Partner Price” means the price that the Partner determines for each Transaction.
“Party” means the Company and the Partner (individually, each a “Party” and collectively, the “Parties”).
“Platform” means the business framework or digital platform or business ecosystem created by the Company and offered to Partners or any other individual or entity within the insurance industry.
“Product” means the products and services that you have or you are planning to develop; and offer to any individual or entity within the insurance industry.
“Referred Clients” mean the clients or individuals or entities that is referred to Partner(s) by the Company
“Subscription” means you agreeing to make a payment to the Company in order to have access to and utilize the Platform.
“Transaction” means any business opportunity created or contributed to create by the Company for the Partner(s) or any individual or entity within the insurance industry.
“Transaction terms” mean the terms and conditions specifically referred to a particular transaction.
“Term” means the period of time that the Partner has been a part of the Company’s business framework and platform. The Term shall begin on the effective date of the first membership fee payment or the first introduction to a Referred Client, whichever is earlier, and shall end by the Termination clause in this MSA.
2. APPLICABILITY OF AGREEMENT
2.1. Applicability. This MSA is valid for each transaction that is created or contributed to create by the Company, for the Partner(s).
3. APPOINTMENT, ACCEPTANCE AND SCOPE
3.1. Appointment. Company may, from time to time, and in its sole and absolute discretion, refer to Partner certain clients (“Referred Clients”). Subject to Company’s compliance with the remaining provisions of this MSA in each case, and subject to Partner’s acceptance of such Referred Clients, Partner agrees to compensate the Company in accordance with Section 4 below.
3.2. Sub-representatives. Company may appoint sub-representatives or other individuals or entities to act on Company’s behalf or to otherwise perform any of Company’s obligations under this MSA, in order to create business opportunities for the Partner; provided that (i) any compensation to such sub-representative or other person to act on Company’s behalf or to otherwise perform any of Company’s obligations shall be solely Company’s responsibility, and (ii) such appointment does not deprive Partner of the essential rights to which it is entitled under this MSA. Any agreement with such sub-representative or other person shall not extend beyond the term of this MSA.
3.3. Relationship of Parties. Company is an independent organization and is not and shall not be deemed to be an employee, legal representative, dealer, general agent, joint venturer of the Partner for any purpose. Company acknowledges that Partner has not granted it any authority to make changes to Partner’s terms and conditions of sale, grant any warranties in excess of those extended by Partner or limit its liabilities or remedies less than Partner limits its liabilities and remedies, sign quotations, incur obligations (expressed or implied), or in general enter into contracts on behalf of Partner or bind Partner in any transaction with customers, governmental agencies or third parties; unless explicitly expressed and agreed to in writing by both parties.
4. FEES AND PAYMENT
4.1. Communications Pursuant to this MSA and Orders. Orders representing the transactions may be made directly with Referred Clients or through the Company. In the case of orders being made directly with the Referred Client by Partner, Partner shall inform the Company immediately in writing.
4.2. Subscription Fee. The Company shall invoice the Partner, and Partner agrees to pay an amount specified in the invoice or on the Company’s digital platform under the membership packages section, for providing you access to Company’s business framework and platform. In case a Partner applies and is accepted to be a member of the Growth Network Program, the Company shall invoice the Partner, and Partner agrees to pay a differentiated amount specified in the invoice or on the Company’s digital platform.
4.3. Referral Fee and Payments. As consideration for a Referred Client or a business opportunity created for the Partner, the Company shall be entitled to receive 10% of the entire amount of sales to be made to the Referred Client or the business revenue created, for three (3) years commencing at the first billing date of the Transaction. Price of the Transaction (“Partner Price”) shall be determined by the Partner, and the Partner directly bills the client without any assistance from the Company. Referral Fee payments shall be made within 10 days following the collection of the same from Referred Client. In case of partial payments, Referral Fee shall also be paid pro rata.
If the Partner is a Growth Network Member, then the Company’s Referral Fee shall be 15% of the entire amount of sales to be made to the Referred Client, for three (3) years commencing at the first billing date of the Transaction.
In cases the Company bills the client directly for the Transaction due to operational reasons, instead of the Partner, including but not limited to billing the Referred Client and transferring the funds to Partner; the Referral Fee should be continued to be paid to the Company as long as the Company continues to assist with the Transaction. Partner Price shall be determined by the Partner, and in such cases, the Company shall be entirely free to add on any additional margin necessary to successfully execute the Transaction. Additional margins may include but it is not limited to local tax, “technology import” tax, transaction fees, service fees, sub-representatives and local partners. Referral Fee shall be calculated based on the Partner Price, excluding the additional margins. Company shall transfer the Partner Price to the Partner within 45 days following the collection of the same from Referred Client. In case of partial payments, Referral Fee shall also be paid pro rata.
4.4. Tail Fee. Company shall be entitled to receive the referral fee under clause (4.3.) hereof, calculated in the manner set forth therein, with respect to any Transactions to the extent that such Transaction is provided to the Partner by Clients whom the Company had contacted during the time period Partner was part of Company’s business framework (“Term”), or introduced to the Partner during the Term, if such Transaction is consummated at any time within the 12-month period following the expiration or termination of this Subscription.
4.5. Suspension of Service and Acceleration. If any amount owing by you to the Company is more than thirty (30) days overdue, the Company may, without limiting or waiving the Company's other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend your Subscription until such amounts are paid in full. In addition to the foregoing, you agree the Company shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, expenses and costs) incurred in attempting to collect payment from you.
The Company and Partner, as applicable, make the following representations, warranties and covenants:
Company and Partner are companies duly organized, validly existing, qualified to do business and in good standing; are and will remain in compliance with all applicable laws and regulations in the conduct of its business and, specifically, in its sale of the Products and provision of any services hereunder.
Warranty. Partner shall perform its obligations under this MSA: (i) using all the reasonable skill and care of a diligent provider of such Products; (ii) in accordance with the current industry practices and standards prevailing amongst solution providers within the same field across industries; and (iii) using efficiently the resources or services necessary or beneficial to the provision of the Products
Partner has all rights, power, and authority to enter into this MSA
Partner’s performance of its obligations and duties hereunder, do not and will not violate any agreement to which Partner is a party or by which it is otherwise bound, and
Neither Party is subject to any pending or threatened litigation or governmental action that could interfere with its performance of this MSA
This MSA is the binding legal obligation of each Party and is enforceable in accordance with its terms.
6. RESPONSIBILITIES OF COMPANY
Company agrees that it will diligently perform the services and obligations detailed in this MSA. The operations of the Company are under its sole and exclusive control, including without limitation supervision of, and liability for expenses incurred with respect to, employees. The Company will use best reasonable efforts to promote Partner’s products through its business framework and Platform.
7. RESPONSIBILITIES OF PARTNER
In addition to any other responsibilities stated in this MSA, Partner will:
take the required measures for the training and instruction of the Company’s operating and maintenance personnel, if it is deemed necessary to create business opportunities within the Platform
provide to Company, without charge, reasonable quantities of promotional literature, brochures and commercial and technical information regarding its Products
provide sales support and technical training to the Company, its sub-representatives and local partners as deemed reasonably appropriate by Partner
8. CONFIDENTIALITY AND PROPRIETARY INFORMATION
8.1. Confidential and Proprietary Information.
As used herein, the term “Proprietary Information” means any information, technical data, or know-how (including, but not limited to, information relating to products, software, services, development, inventions, processes, techniques, customers, pricing, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities) disclosed by one Party (the “Disclosing Party”) to the other (the “Recipient Party”) either directly or indirectly in any form whatsoever, including, but not limited to, in writing, in machine readable or other tangible form, orally or visually.
Unless otherwise expressly authorized by the Disclosing Party, the Recipient Party agrees that it and any of its personnel receiving Proprietary Information under this MSA shall treat such Proprietary Information in strict confidence with the same degree of care applied to its own Proprietary Information of like importance, which it does not wish to disclose, publish, or disseminate to third parties.
In no event will the Recipient Party divulge, in whole or in part, such information to any third party without the prior written consent of the Disclosing Party; provided, further, that any third party must also agree in writing to restrictions comparable to those provided in this Section 6. The Recipient Party may disclose the Proprietary Information to the extent required by a valid order by a court or other governmental body or by applicable law; provided, however, that the Recipient Party will use all reasonable efforts to notify Disclosing Party of the obligation to make such disclosure in advance of the disclosure so that Disclosing Party will have a reasonable opportunity to object to such disclosure.
Notwithstanding any other provisions of this MSA, each party acknowledges that Proprietary Information shall not include any information that: (i) is already known to the Recipient Party at the time of disclosure, or becomes publicly known through no wrongful act of the Recipient Party’s part; (ii) is rightfully received by the Recipient Party from a third party without breach of this MSA; (iii) is independently developed by the Recipient Party without benefit of information received under this MSA; (iv) is furnished to a third party by the Disclosing Party without a restriction on the third party’s right to disclose it; or (v) is explicitly approved for release by written authorization by the Disclosing Party.
It is understood that all Proprietary Information disclosed under this MSA, is, and shall remain, the property of the Disclosing Party. Upon completion of this MSA, or upon written notice from the Disclosing Party, the Recipient Party agrees to return all Proprietary Information in its possession.
The Recipient Party acknowledges that the Disclosing Party, because of the unique nature of the Proprietary Information, would suffer irreparable harm in the event that the Recipient Party breaches its obligation under this MSA and that monetary damages would be inadequate to compensate the Disclosing Party for such a breach. The Parties agree that, in such a circumstance, the Disclosing Party shall be entitled, in addition to such monetary relief as may be applicable, to injunctive relief as may be necessary to restrain any continuing or further breach by the Recipient Party, without showing or proving any actual damages sustained by the Disclosing Party.
The obligations of the Recipient Party under this Section 8 shall survive termination or non-renewal of this MSA for a period of one (1) year.
8.2. Ideas and Suggestions. Any ideas, know-how, techniques, developments and software which may be developed by the Company at any time, including any enhancements or modifications made to the Platform or any intellectual property developed by the Company upon your or any individual or any company’s request, shall be the exclusive property of the Company. The Company provides a business framework and platform that aims to enable all insurance professionals, entrepreneurs, organizations within the insurance industry. Nothing in this MSA is intended or should be interpreted to prevent or inhibit the Company from continuing or commencing to provide such services or solutions to the industry. The Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Platform any suggestions, enhancement requests, recommendations or other feedback provided by you or others relating in any way to the development, improvement, use or operation of the Platform.
9.1. Termination. In case one of the Parties of this MSA fails to perform its obligations, the suffering party must issue a warning letter and grant a remedying period of at least one month. Despite such warning, if the failure continues, the suffering party will be entitled to terminate this Subscription for cause. Without a cause, each party of this MSA is entitled to terminate this MSA with notice to be served one (1) month prior to effectiveness.
9.2. Obligations After Termination. In the event that this MSA is terminated or expires on its own terms, Partner shall have no further responsibilities to Company, except the fees that are explained in clauses (4.3) and (4.4); and except that in the event the MSA terminates for any reason other than a breach hereof by Company, Partner shall be obligated to process orders accepted by Partner prior to the effective date of such termination or expiration or within 180 days thereafter.
9.3. Survival. Notwithstanding anything to the contrary set forth herein, no termination of this MSA shall relieve any Party from any obligations hereunder which are outstanding on, or relate to matters or claims occurring or arising prior to, the date of such termination or which survive such termination by their own terms or nature.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1. INDEMNIFICATION. Partner agrees to indemnify, defend and hold the Company and its officers, directors, agents, employees, affiliates, sub-representatives and local partners harmless from and against any liabilities, damages or expenses resulting from infringement by the Partner’s Product of any patent, trademark, copyright or any other intellectual property right or interest thereof or misappropriation of any trade secret. Company shall provide Partner with reasonable notice of any and all demand statements, claims and proceedings related thereto and give reasonable assistance and the opportunity to assume sole control over defense and settlement provided that Partner uses professional legal advice for defense and settlement. The foregoing obligations do not apply with respect to portions or components of the Product (i) not supplied by Partner , (ii) that are modified by Company or Referred Client after delivery by Partner, (iii) combined with other products, processes or materials provided by Company or Referred Client to the extent the alleged infringement arises solely as a result of such combination where such combination is not contemplated in the use of the Product, (iv) where Company or Referred Client continues allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, or (v) where Company’s or Referred Client’s use of the Product is in breach of this MSA and the claim arises from such misuse. If, due to a claim of infringement, the Product is held by a court of competent jurisdiction to be or are believed by Partner to be infringing, Partner may, at its option and expense (a) replace or modify the Product to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Company or Referred Client a license to continue using the Product, or (c) if neither of the foregoing is commercially practicable, terminate this contract for the Transaction with the Referred Client, and showing best reasonable efforts to give reasonable time for the Company to replace the Partner.
10.2. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTION 8 (CONFIDENTIALITY) OR SECTION 10.1 (INDEMNIFICATION), NEITHER COMPANY ENTITIES NOR THE PARTNER ENTITIES SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION TORT), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL THE PARTNER ENTITIES OR COMPANY ENTITIES BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, STRICT LIABILITY OR OTHERWISE), FOR ANY, EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTION 8 (CONFIDENTIALITY) OR SECTION 10.1 (INDEMNIFICATION), PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL NOT APPLY TO CLAIMS RESULTING FROM GROSS NEGLIGENCE OR WILFUL MISCONDUCT AND ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
11. GENERAL PROVISIONS
11.1. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the Company's employees or affiliates in connection with this MSA. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify the Company by email at email@example.com.
11.2. Force Majeure. If a force majeure event should occur then the affected Party shall immediately inform the other Party thereof in writing, if possible within three days of gaining knowledge of the circumstance. The event shall be described in further detail as well as stating which contractual obligations cannot be fulfilled due to the occurrence of the force majeure event or which contractual obligations can only be fulfilled with a delay. The affected Party shall not be responsible for the delay or impossibility caused by these circumstances.
11.3. Documentation. The materials and other documents provided by Partner in connection with this MSA remain the property of Partner and are protected by copyright laws. The Company, however, has the permanent and free of charge right to utilize the same for the operation and servicing the Partner. In all other respects, the Company shall use the documentation only to the extent as required to exercise the business framework as set out in this MSA. The Company must not utilize the documentation, software, specifications in particular, but not limited to, facility components similar to those of the Partner’s, neither directly nor indirectly, such as e.g. through affiliated companies or authorized third parties unless Partner has given its respective consent.
11.4. Assignment. Neither Party shall assign, pledge or otherwise transfer any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party.
11.5. Cumulative Remedies. The rights and remedies of the Parties hereunder are cumulative and not exclusive of any rights or remedies which the Parties would otherwise have. No single or partial exercise of any such right or remedy by a Party, and no discontinuance of steps to enforce any such right or remedy, shall preclude any further exercise thereof or of any other right or remedy of such Party.
11.6. Entire Agreement. This MSA contains the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions.
11.7. Modifications to MSA. The Company may make modifications, deletions and/or additions to this MSA (“Modifications'') at any time. Such modifications will be effective: (i) five (5) days after the Company provides notice of the modifications, whether such notice is provided through the Platform, is sent to the email address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Modifications or a version of this MSA incorporating the Modifications, whichever comes first.
11.8. Notices. If you wish to provide notice to the Company, you will promptly send written notice by first class mail or pre-paid post addressed to the Company address set forth at www.nionnetwork.com with a confirmation email sent to firstname.lastname@example.org. The Company may give you notice applicable to the Platform by means of a general notice on the Company portal for Platform, by email at the contact address specified by you, and notices specific to you by written communication sent by first class mail or pre-paid post addressed to the contact address you provide. Billing-related notices to you shall be addressed to the relevant billing contact designated by you.
11.9. Choice of Law. and Dispute Resolution. The Terms shall be governed by and interpreted in accordance with the laws of New York, United States. Any dispute, controversy or claim arising out of or in connection with the MSA shall be subject to the jurisdiction of the courts with the district court of New York, United States as the legal venue.
11.10. Dispute Resolution. The Parties shall seek to resolve any dispute, controversy or claim arising out of or in connection with this MSA, including without limitation, any dispute regarding the enforceability of any provision, through good faith negotiations between them within 30 days of any notice of dispute being served or such longer period of time as may be mutually agreed between the Parties. If the Parties are unable to resolve the dispute within this timeframe, and one or both parties desire to pursue the dispute, the complaining party must submit the dispute to binding arbitration in accordance with the rules and regulations of the American Arbitration Association. The Parties will share equally the cost of arbitrating such dispute(s). The arbitrator(s) shall not be empowered to award punitive or other damages in excess of compensatory damages, and both parties irrevocably waive the right to any such damages. Judgment on the award rendered by the arbitrator(s) may be entered by any court having jurisdiction over the dispute. In the event that the parties cannot agree upon an arbitrator within a 90 days period, each party shall designate an arbitrator and those two arbitrators shall choose a third arbitrator, with that third arbitrator serving as the sole arbitrator of the dispute.
11.11. Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA and any other written agreements related to this Subscription shall remain in effect.
11.12. Publicity. Either Party may publicize the existence and general nature of the relationship established by this MSA press releases and other marketing collateral. You consent to the Company’s right to use your name and logo on the Company’s website and in marketing activities and press releases.