THIS PARAGRAPH CONTAINS AN IMPORTANT NOTICE. PLEASE READ IT CAREFULLY. SECTION 11 OF THIS DOCUMENT CONTAINS A BINDING ARBITRATION PROVISION THAT REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS (RATHER THAN JURY TRIALS OR CLASS ACTIONS) AND LIMITS YOUR ABILITY TO HAVE A JURY TRIAL.
WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS: WHILE THERE ARE IMPORTANT POINTS THROUGHOUT THIS AGREEMENT, PLEASE NOTE THE DISCLAIMERS OF WARRANTY AND LIMITATIONS ON MODERN LIFE’S LIABILITY AS EXPLAINED IN SECTION 11.
MODERN LIFE PRODUCER GROUP MEMBER AGREEMENT
This PRODUCER AGREEMENT (“Agreement”) is entered into by and between Modern Life Group, Inc., a Delaware corporation (“Modern Life”, which shall be defined herein to include Modern Life’s licensed producer(s), as applicable), and you (“you” or “Producer”) (collectively, the “parties”). If you are entering into this Agreement on behalf of your organization, you represent and warrant that you have the authority to bind your organization to the terms of this Agreement, and such organization shall be considered the “Producer”. By clicking “I accept”, you accept and agree to be bound by this Agreement, the Term Sheet and Production Requirements (collectively, “Producer Agreement”) and by Modern Life’s Privacy Policy, found at https://www.modernlife.com/privacy (“Privacy Policy”), incorporated herein by reference. By accessing and/or using the website or submitting an Application(s) as set forth herein, you understand and agree to be bound by the terms of this Agreement and the Privacy Policy.
WHEREAS, Modern Life has appointments with insurance companies and provides brokerage services and technology solutions for the production of certain policies (“Policies”) as specified by such insurance companies (each such insurance company, individually, an “Insurer”, and collectively the “Insurers”); and
WHEREAS, Producer is an insurance producer that seeks to place insurance business for Producer’s clients with an Insurer through Modern Life; and
WHEREAS, Producer agrees to meet certain production requirements (“Production Requirements”) to become a Producer Group Member as defined in Section 2.7 and detailed in the Producer Term Sheet (“Term Sheet”); and
WHEREAS, Modern Life and Producer are desirous of entering into a mutually beneficial working relationship, with Producer being employed by Agency as an independent contractor.
NOW, THEREFORE, Producer and Modern Life, in consideration of the matters stated above and of the mutual covenants and obligations hereinafter set forth, the Parties intending to be legally bound hereby agree as follows:
1. Producer Authority.
1.1 Appointment and Authority. Modern Life appoints Producer to place their life, annuity, disability income and long-term care insurance business as a Modern Life Producer Group Member in return for certain support, marketing and administrative services from Modern Life. The authority granted to Producer hereunder is non-exclusive. Notwithstanding, Producer agrees to meet certain Production Requirements.
Subject to other provisions of this Agreement, Modern Life hereby appoints Producer for placing policies through Modern Life in all jurisdictions in which Modern Life is authorized to operate (“Territory”). Producer accepts such appointment with respect to the (i) solicitation and sale of the types of Policies, and (ii) recruitment of sub-producers, if any.
2. Producer Authority.
Commencing on the Effective Date, Producer shall perform all of Producer’s duties within the scope of the relationship created under this Agreement to the best of Producer’s professional knowledge, skill and judgment, which duties shall include, but not be limited to, the following:
2.1. Maintain Licenses in Good Standing and Compliance. Producer shall be responsible for complying with, and shall be responsible for each of its sub-producers complying with all applicable state and federal laws and regulations including without limitation maintenance of any and all required licenses, and compliance with all disclosure and information obligations including to clients. Producer shall disclose compensation to their clients in accordance with applicable state and federal rules and regulations. If applicable, Producer is solely responsible for its relationship with its Broker-Dealer and complying with all related rules and regulations.
2.2. Producer shall be responsible to ensure:
(i) accuracy of application and other information provided by Producer and sub-producers,
(ii) no alteration of information or records supplied by applicants or sub-producers,
(iii) prohibitions against stranger-owned/originated and/or investor-owned/originated life insurance (i.e., STOLI/IOLI), or
(iv) provision to and acknowledgement by applicants of authorizations, privacy notices and other required notices.
2.3 Producer Expenses. Producer will pay, assume the obligation and be fully responsible for all costs and expenses associated with and in respect of the performance by Producer of its duties hereunder, unless an expense is approved by Modern Life in writing in advance.
2.4 Accurate Records; Audit. Producer will prepare and maintain separate, identifiable, complete, and accurate books, files, records and accounts of all business. If required by a regulator or insurer, Modern Life, in its sole discretion, reserves the right, upon reasonable notice and at reasonable times to visit, inspect, examine, audit and verify electronically or at Producer’s offices, any of the properties, accounts, files, documents, books, reports, work papers and other records belonging to or in the possession or control of Producer relating to the business covered by this Agreement.
2.5 Professional Liability Insurance. While this Agreement is in effect, Producer will, at its sole cost and expense, at all times maintain in full force and effect, a policy of agents and brokers errors and omissions insurance coverage policy issued by an insurer rated not less than “A-” by A.M. Best Company, which policy provides limits of liability that provides limits of liability of at least one million dollars ($1,000,000). Producer shall provide evidence of such coverage as Modern Life may request.
2.6 Sub-producers. Producer shall be liable and responsible for any sub-producer’s compliance with Producer’s obligations under this Agreement.
2.7 Production Requirement. Producer has a minimum production requirement as defined in the Term Sheet. Continued vesting of any unearned equity or options is contingent on meeting the minimum annual production requirements. Failure to hit these minimum requirements may also result in the loss of any applicable Producer Group Member services.
3. Limits on Producers Authority. Producer shall have no authority, nor shall it represent itself as having such authority, other than as specifically set forth in this Agreement. Without limiting the generality of the foregoing sentence, Producer shall not do any of the following:
(i) make, waive, alter or change any term, rate or condition stated in any Policy or any other Modern Life or Insurer approved form, or discharge any contract in the name of Modern Life or Insurer,
(ii) misrepresent or compare incompletely for the purpose of inducing a policyholder of any other insurer to lapse, forfeit or surrender his, her or its insurance therein or make any representation or warranty on behalf of Modern Life or an Insurer without the prior written consent of Modern Life or an Insurer, respectively, in each instance,
(iii) bind coverage under a Policy or make any representation or warranty on behalf of Modern Life or an Insurer without the prior written consent of Modern Life or the Insurer, respectively, in each instance, or
(iv) pay, handle, administer, adjust, or settle any claim, accept any claim report or arrange any claim settlement with respect to a Policy.
3.2 Producer’s appointment and authority with respect to the Policies pursuant to this Agreement are limited to those portions of the Territory in which the Producer and an Insurer are duly licensed and authorized to transact insurance. Producer is exclusively responsible for maintaining any and all required licenses, active and in good standing. Notwithstanding any other provision of this Agreement, Producer shall have no binding authority with respect to the Policies, and no act of Producer shall be binding upon Modern Life, unless mutually agreed upon in writing by both Modern Life and Producer.
4. Representations, Covenants and Warranties of Producer.
4.1 Authority, Execution; Enforceability. Producer represents, warrants, and covenants that:
(i) it shall promptly notify Modern Life within five (5) business days of any suspension, revocation, or other adverse action by any licensing agency or other governmental authority with respect to any license,
(ii) it shall comply with Applicable Law, including, but not limited to, compensation disclosure requirements, policy/service fees, data privacy and security laws, OFAC requirements, and anti-money laundering requirements.
5. Modern Life Duties and Responsibilities.
Commencing on the Effective Date, Modern Life will faithfully perform all of Modern Life’s duties within the scope of the relationship created under this Agreement to the best of Modern Life’s professional knowledge, skill and judgment.
6. Compensation.
6.1 Producer Commission. As compensation for its services pursuant to this Agreement, Producer shall be entitled to receive from Modern Life a share of the commission on premiums received by Insurers on Policies issued through Producer hereunder (“Commission”), at the rate(s), and otherwise as, set forth in a Commission Payment Schedule. Unless another timing of payment is specified by an Insurer, the amount of the Commission earned by Producer during the term of this Agreement shall be paid to Producer within thirty (30) days following receipt of funds by Modern Life; provided, for the avoidance of doubt, Producer shall not be entitled to receive any Commission on any premium that is not received by Modern Life or the applicable Insurer, or that constitutes Return Commission in Section 6.3. Modern Life or an Insurer, in its sole discretion, may prospectively change the commission rate.
6.2 Modern Life is solely responsible for setting and paying Commission to Producer and any sub-producers for the sale of Policies. As an accommodation, Modern Life may direct an Insurer to distribute payments of Commission to Producer or a sub-producer, or Modern Life may distribute such payments of Commission to a sub-producer.
6.3 Return Commission. During and following the term of this Agreement, Producer shall refund to Modern Life or the Insurer, as applicable, any and all unearned Commission and bonuses due to cancellation, rescission, lapse, premium reduction, uncollected premium, collection action, endorsement, or otherwise, at the same rate as such Commission was originally paid as set forth in a Commission Payment Schedule. Such amounts shall be paid to Modern Life or the Insurer, as applicable, by Producer within thirty (30) days after the date on which Producer receives written notification of such refund from Modern Life or the Insurer, as applicable, or, at Modern Life’s discretion, offset from other Commission payments.
6.4 Offset. All undisputed amounts due Producer under this Agreement shall be subject to the right of offset by Modern Life. For the avoidance of doubt, Modern Life shall be entitled to offset undisputed Policy premiums or other amounts that are not received by Modern Life or an Insurer from any Commission or other amounts due Producer under this Agreement.
7. Advertising.
7.1 Advertising. Neither Party shall make, publish, issue or insert or cause to have made, published, issued or inserted any advertisement, circular, pamphlet or other publication or statement, written or through electronic media, including bidding on or targeting the other Party’s brand terms within search engines or other advertising platforms (each an “Advertisement”), referring to the other Party or the Policies or the services transacted hereunder without the other Party’s express prior written approval and consent in each instance on a case-by-case basis. Each Party shall be solely responsible to ensure that its Advertisements, website and the information contained therein comply with Applicable Law. Each Party shall pay, assume the obligation and be fully responsible for all costs and expenses associated with its own Advertisement(s).
8. Term and Termination of Agreement.
8.1 Term. The Parties agree that this Agreement shall commence on the Effective Date and shall continue in effect with annual renewals. After the initial term of one year, either Party may terminate this Agreement by providing thirty (30) days written notice of termination to the other Party.
If this Agreement is terminated, Producer shall be entitled to Commission for premiums for in force business where premium is actually received by Modern Life from the Insurer after notice of such termination.
8.2 Termination for Cause. Modern Life may terminate this Agreement for cause with immediate effect by providing written notice to Producer if any on the following occur, each of which shall constitute “Cause”:
(i) Producer’s license is not in good standing for any reason,
(ii) the Producer fails to comply with any material term or obligation under this Agreement or the Producer takes any action, which materially and adversely affects the interest of Modern Life,
(iii) the Producer is or has engaged in any act of fraud, willful misconduct or negligence, or
(iv) in the event of the Producer’s bankruptcy, insolvency, liquidation or assignment for the benefit of creditors of either Party.
9. Confidentiality and Intellectual Property.
9.1. Ownership of Confidential Information. In connection with the business relationship contemplated by this Agreement, the Parties may receive or have access to commercially valuable technical and non-technical confidential or proprietary information (“Confidential Information”) of the other Party. Confidential Information includes all information, whether oral or written, relating to the business of a Party that is not generally known or available to others, including without limitation, source code and documentation for software, trade secrets, customer and supplier lists, customer and supplier information (including name, address, email address, age and other personal or identifying information), pricing strategies, intellectual property, systems, know-how and marketing and business plans. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right to use, the Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights therein, by implication or otherwise. All Confidential Information disclosed hereunder shall remain the exclusive property of the Disclosing Party.
9.2 Use of Confidential Information. All Confidential Information made available to either Party, together with all physical and electronic embodiments thereof, shall be held by such party in the strictest confidence. Producer and Modern Life shall use all such Confidential Information solely in connection with the performance of its respective duties hereunder. The Parties agree that each will limit access to Confidential Information to only those employees or other representatives who have a need to know such information. The Parties further agree that if either receives a request or demand for access to Confidential Information disclosed by one party to the other, the Party receiving such request or demand shall notify the other Party in writing within 24 hours of such request or demand.
9.3. Confidentiality Obligations. During the term of this Agreement, and for three years after the termination of this Agreement, the Parties will keep in confidence and trust and will not disclose or disseminate, or permit any of its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory boards) (collectively, “Representatives”), as the case may be, to disclose or disseminate the existence, source, content or substance of any Confidential Information to any other person. Each Party will employ at least the same methods and degree of care, but no less than a reasonable degree of care, to prevent disclosure of the Confidential Information as the other Party employs with respect to its own confidential patent data, trade secrets and proprietary information. The Receiving Party and its Representatives will be given access to Confidential Information only on a need-to-know basis, and only if they have executed a form of non-disclosure agreement which imposes a duty to maintain the confidentiality of information identified or described as confidential and after they have been informed of the confidential nature of the Confidential Information.
9.4 Limitation on Obligations. The obligations of the Recipient specified in Section 9.3 shall not apply, and the Recipient shall have no further obligations, with respect to any Confidential Information to the extent the Recipient can demonstrate, by clear and convincing evidence, that such Confidential Information:
9.5 Securing of Consumer Personal Information (CPI). Without limiting the other terms and conditions of this Section 9, the following terms and conditions shall apply to CPI. For purposes of this Agreement, “CPI” shall mean information relating to an identified or identifiable individual supplied to Producer or Modern Life relating to or as a result of the services provided by Producer or Modern Life hereunder, including without limitation:
(i) an individual’s name, address, e-mail address, IP address, telephone number and/or social security number or any other Personally Identifiable Information,
(ii) the fact that an individual has a relationship with Modern Life or Insurer,
(iii) an individual’s account information,
(iv) any information regarding an individual’s medical history or treatment, and
(v) any other information of or relating to an individual that is protected from disclosure by applicable laws, including without limitation, all applicable Privacy Laws.
For purposes of this Agreement, “Privacy Laws” shall mean any federal, state or local laws, rules or regulations of any jurisdiction, as applicable to Producer or Modern Life for the services hereunder, addressing the use, protection, collection, transmission, storage or other processing of and/or the notification after a security incident regarding CPI.
The parties acknowledge that, among other things, the Privacy Laws govern the unauthorized use or disclosure of CPI. Producer or Modern Life shall protect and keep strictly confidential all CPI to the extent required by applicable laws, including without limitation, all applicable Privacy Laws.
9.6 Intellectual Property. Each Party acknowledges and agrees that the other Party shall each retain all ownership rights, title and interest in and to each of their respective names, logos, marks, other identifiers, promotional, marketing and descriptive copies, signage, graphic designs, CPI, Confidential Information and any other intellectual property (“Intellectual Property”). Nothing herein shall be construed as granting any license, transfer, grant, release or waiver or other right in either Party’s or Insurer’s Intellectual Property, except those rights expressly granted hereunder.
9.7 Licenses. Modern Life hereby grants to Producer, and Producer accepts, a limited, revocable, royalty-free, non-transferable, non-sublicensable license and sublicense to use Modern Life name and logo solely for the purposes of performing its obligations under this Agreement. Producer hereby grants to Modern Life and Modern Life accepts, a limited, revocable, royalty-free, non-transferable, non-sublicensable license to use Producer’s name and logo solely for the purposes of performing its obligations under this Agreement.
9.8 Injunctive Relief. Each Party acknowledges and agrees that any breach of its obligations under this Section 9 shall cause immediate and irreparable harm to the other Party for which money damages may not constitute an adequate remedy, and that in the event of any such breach, the disclosing Party may be entitled to immediate injunctive relief in addition to any other remedies available to the other Party, without the necessity of posting any bond.
10. Indemnification.
10.1 Indemnification. Producer shall indemnify, defend and hold harmless Modern Life, and their respective Representatives as well as their respective affiliates from and against any and all third-party claims, suits, hearings or actions which result in, or give rise to, damages, liabilities, fines, penalties, costs, losses, judgments or expenses, including reasonable attorneys’ fees (collectively, “Indemnification Claims”), caused by or resulting from any material breach of this Agreement by Producer, or any alleged misconduct or negligence by Producer or by any of Producer’s respective Representatives.
Modern Life shall indemnify, defend and hold harmless Producer, and their respective Representatives as well as their respective affiliates from and against any and all third-party claims, suits, hearings or actions which result in, or give rise to, damages, liabilities, fines, penalties, costs, losses, judgments or expenses, including reasonable attorneys’ fees (collectively, “Indemnification Claims”), caused by or resulting from any material breach of this Agreement by Modern Life, or any gross negligence by Modern Life or by any of Modern Life’s respective Representatives.
10.2 Notice of Claim for Indemnification. Upon obtaining knowledge of an Indemnification Claim which could give rise to indemnification under this Section 10, the Party demanding such indemnification (the “Indemnitee”) shall promptly notify the non-demanding Party from whom indemnification is sought (the “Indemnitor”), in writing, of any Indemnification Claim which the Indemnitee has determined has given or could give rise to a right of indemnification under this Section 10 (the “Notice of Claim”).
10.3 Defense of Indemnification Claims. With respect to any Indemnification Claim set forth in a Notice of Claim, the Indemnitor shall defend, in good faith and at its own expense, any such Indemnification Claim, and the Indemnitee, at its expense, shall have the right to participate in the defense of any Indemnification Claim. In connection with its defense of an Indemnification Claim, the Indemnitor may select counsel for the defense or prosecution of such action, which counsel shall be subject to the reasonable approval of the Indemnitee. So long as the Indemnitor is defending in good faith any such third party Indemnification Claim, the Indemnitee shall not settle or compromise such third party Indemnification Claim. The Indemnitee shall make available to the Indemnitor at Indemnitor's sole expense or its representatives all records and other materials reasonably required by them for its use in contesting any Indemnification Claim and shall reasonably cooperate with the Indemnitor (at Indemnitor’s sole cost and expense) in the defense of all Indemnification Claims. The Indemnitor may settle any claim without the consent of the Indemnitee in the event that the sole relief requested is money damages and such money damages are paid in full by the Indemnitor and all litigation against the Indemnitee with respect thereto is dismissed with prejudice.
11. General.
Independent Contractor. This Agreement is not a contract of employment. Nothing contained in this Agreement shall be construed to create the relationship of joint venture, fiduciary relationship, partnership or employer and employee between Modern Life, on the one hand, and Producer, on the other hand. Each Party is an independent contractor and shall be free, subject to the terms and conditions of this Agreement, to exercise judgment and discretion with regard to the conduct of its business. Each Party shall be solely responsible with respect to, and will promptly pay or withhold, as required, all taxes or sums due to the federal, state and/or local taxing authorities with respect to that Party and that Party’s employees.
Assignment. This Agreement and the rights, duties and obligations of Producer hereunder may not be assigned to any person by Producer without the prior express written consent of Modern Life, and any purported assignment in the absence of such consent shall be void.
Notices. Notices to Producer shall be sent to the email address on file with Modern Life. Notices to Modern Life shall be sent via email to legal@modernlife.com. Any Party may, by virtue of written notice in compliance with this Section, alter or change the address or the identity of the person to whom any notice is to be sent.
Entire Agreement. This Agreement, together with a Commission Payment Schedule and executed Term Sheet contain the entire understanding of the Parties. This Agreement may not be amended except as agreed in writing by both parties.
Disclaimer of Warranties; LIMITS ON LIABILITY. Except as expressly set forth in this Agreement, all other warranties, express or implied, are expressly disclaimed including, but not limited to, any warranty of merchantability, non-infringement, fitness for a particular purpose, title or course of dealing, trade or usage. IN NO EVENT SHALL MODERN LIFE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE TOTAL OF COMMISSIONS PAYABLE PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. EXCEPT FOR (A) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (B) A PARTY’S INDEMNIFICATION OBLIGATIONS, OR (C) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.
Governing Law; Venue; Arbitration. Producer will submit any disputes arising from, or related to, Agreement, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying New York law. The seat or legal place of arbitration will be in New York, New York. Producer agrees to arbitrate in its individual capacity only – not as a representative or member of a class – and Producer expressly waives any right to file a class action or seek relief on a class-action basis. Furthermore, unless Producer and Modern Life agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative of class proceeding. All arbitration proceedings are confidential, unless both Producer and Modern Life agree otherwise. Arbitration orders and awards required to be filed with applicable courts of competent jurisdiction are not confidential and may be disclosed by the Parties to such courts. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflict of laws provisions.
Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Survival. The terms of this Agreement which by their nature are intended to survive termination or expiration of this Agreement shall survive such termination or expiration.
By clicking “I accept” you represent that you are a duly authorized representative and understand, accept and agree to be bound by the terms of this Producer Agreement and you cause this Agreement to be executed as of the Effective Date. If you do not agree to this Agreement, you must not access or use the website or submit Applications as set forth herein.
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