LIFE-EXCHANGE, INC. LIFE SETTLEMENT PROVIDER USER AGREEMENT
Exhibit
10.4
LIFE-EXCHANGE,
INC.
This
Life
Settlement Provider User Agreement (the “Agreement”)
is
entered into between Life Exchange,
Inc., a Nevada corporation (“Life-Exchange”),
and
______________,
a
viatical or life settlement
provider (“Provider”).
Provider
desires to become a Registered Provider (as defined below) in order to
participate in E-Settlement
Events (defined below) via the Life-Exchange web site located at xxx.xxxx-xxxxxxxx.xxx,
and
all
associated web pages (the “Site”).
In
consideration of Provider’s inclusion as a Registered Provider with
Life-Exchange, Provider hereby agrees with, and covenants in favor of
Life-Exchange as follows:
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1.
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Provider’s
Compliance with Site Agreements.
Provider desires to participate in E-Settlement Events (defined below)
and
agrees that its participation in any such E-Settlement Events is
contingent upon its acceptance and continued compliance with the
Terms and
Conditions of Use, Privacy Policy and other guidelines posted on
the Site
at the commencement of an E-Settlement Event (collectively, “Site
Agreements”)
and the terms and conditions of this Agreement.
By participating in an E-Settlement Event, Provider acknowledges
that it
has read and
agrees to each of the Site Agreements, as they may be amended from
time to
time. Provider acknowledges and agrees that Life-Exchange may, in
its sole
and absolute discretion,
alter, amend, change, modify, remove or supplement any of the Site
Agreements in the
manner described in the applicable Site
Agreement.
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2.
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Authorized
Users of Provider.
Upon acceptance as a Registered Provider by Life-Exchange, Life-Exchange
shall establish an account for Provider (“Life-Exchange
Account”)
and provide Provider
a Provider user identification number and a series of access numbers
for
accessing the
Site (the “Provider’s
Life-Exchange Access Codes”).
Provider may authorize only its employees
to access the Services and Provider’s Life-Exchange Account on behalf of
Provider (“Authorized
Users”).
Provider shall cause all Authorized Users to comply with the provisions
of
this Agreement and the Site Agreements. Provider shall not, and shall
not
permit any of its employees,
who become Authorized Users to, disclose Provider’s Life-Exchange Access
Codes to
any person or entity, other than the Authorized Users, or permit
any
person or entity, other than
the Authorized Users, to use the Provider’s Life-Exchange Access Codes,
the Site or the Services.
A complete list of all initial Authorized Users who are authorized
to act
under Provider’s
Life-Exchange Account is included on Exhibit
A
attached hereto and incorporated herein
by this reference. Provider can add or remove Authorized Users by
sending
a written request
to Life-Exchange and Life-Exchange shall respond to Provider’s request
within five (5) business
days of receiving such notice. Provider shall immediately provide
written
notification to Life-Exchange upon the termination or suspension
by
Provider of its employment of an Authorized
User. Upon its receipt of such written notice, Life-Exchange shall
promptly terminate
such Authorized User’s access to the Site. Provider agrees with
Life-Exchange that Provider
shall be solely responsible for all activity conducted using the
Provider’s Life-Exchange
Access Codes and shall notify Life-Exchange immediately if any Authorized
User’s access
must be terminated or any of Provider’s Life-Exchange Access Codes is lost
or stolen or
has been, or reasonably could be expected to be, accessed or used
by an
unauthorized user
and that Life-Exchange has no liability whatsoever to Provider or
any
other person or entity
for any unauthorized use of a Provider Life-Exchange Access
Code.
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3.
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E-Settlement
Events.
The Site provides an on-line marketplace operated by Life-Exchange,
which
provides a venue for life settlement brokers registered with the
Site and
authorized to use
the Site and the Services (“Registered
Brokers”)
to (a) post-electronically at the Site, on behalf
of their respective customers who own and seek to sell in-force
non-variable life insurance
policies (a “Policyholder
Seller”)
in Life Settlement Transactions (as defined below), life insurance
policies for sale to Registered Providers (as defined below) and
(b)
receive electronically
through the Site from Registered Providers indications of interest
to
purchase such
life insurance policies in transactions to be completed off-line
outside
the Site, ((a) and (b),
collectively “E-Settlement Event”). For purposes of this Agreement,
“Registered
Provider”
means
a licensed viatical or life settlement provider as required under
applicable law, who has
satisfied all of the conditions of Life-Exchange’s registration process
for a viatical or life settlement
provider as determined by Life-Exchange in its sole and absolute
discretion, including
acceptance of the Site Agreements and this Agreement, and been provided
access to
the Site by Life-Exchange, and who remain at all times in compliance
with
the Site Agreements
and this Agreement. For purposes of this Agreement, a Registered
Broker
must (a)
be licensed as required under applicable law, (b) have satisfied
all of
the conditions of Life-Exchange’s
registration process for a viatical or life settlement broker as
determined by Life-Exchange
in its sole and absolute discretion, including acceptance of the
Site
Agreements and
this Agreement, have been provided access to the Site by Life-Exchange,
and (c) remain at
all times in compliance with the Site Agreements and this Agreement.
However, nothing in this
Agreement shall prohibit the Provider from performing its own due
diligence on the background
and licensing of any Registered Broker with which the Provider desires
to
conclude
a Life Settlement Transaction with. For purposes of this Agreement,
“Life
Settlement Transaction”
means the sale of an in-force non-variable life insurance policy,
which
insures the life of an individual who does not have, on the date
of such
sale, a catastrophic,
chronic, life-threatening or terminal illness or a life expectancy
of
twenty-four (24) months or less (“Insured”),
for an amount less than the death benefit payable under such
life insurance policy (“Policy”).
A full description of the services to be made available to Provider
including without limitation, those related to E-Settlement Events
is set
forth on the Site
and may be changed from time to time at the sole and absolute discretion
of Life-Exchange
(“Services”).
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4.
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Life
Expectancy Reports.
Provider shall be solely responsible for payment of, and shall timely
pay
when due, all costs, expenses and fees associated with life expectancy
reports ordered by Provider
or any of its Authorized Users from any life expectancy company that
has
entered into
a Life Expectancy Company User Agreement with Life-Exchange and is
an
authorized user of
the Site (a “Registered
LE Company”)
through the Site (the “LE
Reports”).
Provider acknowledges
and agrees that Life-Exchange shall not be responsible for (a) payment
of
any of the costs, expenses and fees associated with such LE Reports;
or
(b) the timeliness of delivery
of LE Reports by Registered LE Companies to Registered Provider or
Registered Brokers.
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| 5. |
| (a). |
Provider
shall timely pay all applicable fees and charges for the Services,
including
any fees and charges for late payment. All fees and charges are
posted
on the Site (see “Registered
Providers Fees and Charges”
on the Site) accessible only to Registered Providers. The fees for
the
Services payable by Provider to Life-Exchange are set forth in
Exhibit
B
attached hereto
and incorporated herein by this reference. Life-Exchange may unilaterally,
in its sole and absolute discretion, amend any of the fees and charges
payable by Provider and any modifications to such fees and charges
shall
be automatically effective seventy-two (72) hours after such changes
are
posted on the Site. Provider will be notified of changes to the fees
and
charges
only by electronic transmission of such changes to the Provider's
Life-Exchange
Account; provided, however, failure by Life-Exchange to provide
such notice shall not delay the effectiveness of the revised fees
and
charges
and by participating in an E-Settlement Event, Provider acknowledges
that it has read and agrees to the then-current Registered Providers
Fees
and claims.
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Provider
hereby agrees and acknowledges that it shall pay to the Escrow
Agent
(defined below) the full amount of the commission, fee or other
compensation owed to a Registered Broker for such Registered Broker’s
services
rendered to a Policyholder Seller in connection with a Life Settlement
Transaction consummated between such Policyholder Seller and Provider
pursuant to an E-Settlement Event, which amount shall then be remitted
by the Escrow Agent to the Registered Broker upon the later of the
date
of the consummation of such Life Settlement Transaction or the date
following
the expiration of the applicable rescission period (whether required
by
applicable law or provided by Provider under the terms of its agreement
for
the Life Settlement Transaction), if any, during which the applicable
Policyholder Seller may rescind such Life Settlement Transaction.
“Escrow
Agent”
means the U.S. or state bank or other financial institution engaged
by
Life-Exchange
from time to time to receive from a Registered Provider payment
of the Registered Broker’s fee owed for a Life Settlement Transaction
consummated between a Policyholder Seller and Provider pursuant
to an E-Settlement Event and remit payment of such Registered Broker’s fee
to the Registered Broker in accordance with the terms of this
Agreement.
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6.
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Provider
Content.
Provider grants Life-Exchange the right to use the content submitted
by
Provider
to Life-Exchange (the “Provider
Content")
and each LE Report purchased by Provider from a Registered LE Company
through the Site for all purposes associated with the Site and
as
disclosed in the Life-Exchange Privacy Policy. Life-Exchange is entitled
to copy and store all information
transmitted through the Site by or to Provider and to use that information
in order to
provide the Services and other services and functions of the Site,
provided that such information
will be treated as Confidential Information by Life-Exchange pursuant
to
Section 6 below.
Life-Exchange may record and observe transactions and activity on
the Site
to assist Life-Exchange
in providing and maintaining the Site, however Life-Exchange does
not
undertake any obligation to record or observe any or all transactions
or
activities. Life-Exchange
may use and disclose any such information in an aggregated form that
will
not disclose the bidding or purchase offering habits of Provider
or
violate applicable laws.
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| (a). |
Provider
and Life-Exchange may receive the information of the other party
that
such party maintains as confidential (“Confidential
Information”).
Each party
shall protect the Confidential Information of the other party to
the
same
degree it protects its own, provided, however, each party will use
at
least
reasonable means to protect such Confidential Information. Each party
shall use the Confidential Information of such party only as permitted
herein. This
obligation shall not extend to any information that (a) is known
by a
party
prior to receiving it from the other party; (b) is in the public
domain or
becomes
generally known to the public by some action other than breach of
this
Section 6; (c) is received from a third party without obligation
of
confidentiality;
or (d) is independently developed by the receiving party. Each
party’s
obligations under this Section 6 shall extend for a period of two
(2)
years
from termination, expiration or cancellation of Provider’s use of the
Services, except to the extent applicable trade secret law requires
the
obligation
to continue.Confidential
Information shall include without limitation
the prices associated with E-Settlement Events. This
confidentiality
obligation shall supersede all prior confidentiality or nondisclosure
agreements that might affect the Confidential Information disclosed
pursuant to this Agreement.
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(b).
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Provider
acknowledges and agrees that in the course of using the Site, Provider
may receive from Covered Entities and Business Associates (as such
terms are defined by the Health Insurance Portability and Accountability
Act of 1996 and regulations promulgated thereunder (“HIPAA”)),
information regarding Policyholder Sellers and/or Insureds that
constitutes “protected health information” (“PHI”) under HIPAA, provided
to Provider,
Registered Brokers or Registered LE Companies pursuant to written
authorizations executed by the Insureds. Provider agrees with, and
covenants to, Life-Exchange that all such authorizations that relate
to
PHI Provider shares on the Site or otherwise with Life-Exchange,
Registered LE Companies, Registered Providers and Registered Brokers
shall
contemplate and
not prohibit such disclosures and the reasonably anticipated uses
of
such
PHI by Registered Brokers, Registered Providers and Registered LE
Companies in connection with the
Site.
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(c).
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Provider
further acknowledges and agrees that in the course of its use of
the
Site,
Provider shall receive from Registered Brokers, Registered Providers
and
Registered LE Companies sensitive nonpublic personally identifiable
information
regarding Policyholder Sellers and Insureds that constitutes “Non-Public
Personal Information” as such term is defined in the Xxxxx-Xxxxx-Xxxxxx
Act of 1999 and state insurance laws or regulations enacted pursuant
to GLBA, as each may be amended from time to time (“GLBA”), including,
without limitation, Policyholder Sellers’ and/or Insureds’ data and
financial
information (“NPI”), and Provider shall use such NPI solely in
connection
with its use of the Site and consummation of Life Settlement Transactions.
Provider may have executed a written agreement with such, Registered
LE
Companies, Registered Brokers or Registered Providers who provide
NPI to
Provider that requires Provider to maintain the confidentiality,
privacy
and security of such NPI in accordance with GLBA, or the disclosure
of
such information to Provider may be by written authorization or consent
of
the
Policyholder Seller or Insured. Provider agrees with, and covenants
to,
Life-Exchange
that (1) Provider will abide by any such third-party agreements during
the
entire term of this Agreement (including any extension or renewal
hereof)
with regards to any use, maintenance or disclosure of any NPI associated
with a Policy, and (2) all such authorizations or consents that
relate
to NPI Provider shares in its use of the Site or otherwise with Life
Exchange,
Registered LE Companies, Registered Brokers and Registered Providers
shall
not prohibit such disclosures and the reasonably anticipated uses
of such NPI by Registered LE Companies, Registered Brokers and
Registered
Providers.
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| 8. |
The
Site is an Online Venue for Indications of Interests to Buy and
Sell.
The Site is only an online
venue and communications medium to facilitate Registered Providers
and
Registered Brokers to exchange information relating to proposed Life
Settlement Transactions. Provider acknowledges
that (a) this Agreement is not a viatical or life settlement contract,
(b)
Life-Exchange
is not a party to, nor deemed to be a party to, any Life Settlement
Transaction (including,
without limitation, the underlying purchase and sale agreement for
a Life
Settlement Transaction) arranged or consummated between Registered
Brokers
and Registered
Providers or otherwise, (c) Life-Exchange is not a viatical or life
settlement broker or
an agent, subagent or representative of any Registered Broker or
any
Policyholder Seller, (d)
Life-Exchange is not a viatical or life settlement provider or an
agent,
subagent or representative
of any Registered Provider, (e) Life-Exchange is not involved in
any of
the
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underlying
Life Settlement Transactions that are arranged using the Site for E-Settlement
Events
between Registered Brokers and Registered Providers and a Life Settlement
Transaction
(including, without limitation, the underlying purchase and sale agreement
for
any Life
Settlement Transaction) will be effected and consummated, if at all, by the
applicable Policyholder
Seller and Registered Provider outside the Site in accordance with all
applicable laws
and
regulations. As a result, Life-Exchange has no control over, and disclaims
and
makes
no
representations or warranties, regarding the benefits, income tax or other
tax
consequences,
quality, safety or legality of any proposed Life Settlement Transaction listed
on the
Site
or the subject of an E-Settlement Event, the truth or accuracy of the listings,
the ability
of the offeror of any Policy to sell the applicable Policies or the
creditworthiness or ability
of any Registered Providers to pay the amount owed for the purchase of a Policy
in a Life
Settlement Transaction. Life-Exchange does not make any representations or
warranties regarding
whether any proposed Life Settlement Transaction facilitated through the Site
will be
effected or completed, and Life-Exchange does not transfer or effectuate the
transfer of legal
ownership of any Policies listed on the Site or the beneficiary’s right to
receive payment of
the
death benefit thereunder, if any, from a policy owner to a Registered Provider.
Life-Exchange
makes no representations or warranties, and assumes no responsibility or
obligation
to verify, the truth or accuracy of any of the information supplied to
Life-Exchange by
users
of the Site and made available on the Site or the viability or legality of
any
of the transactions arranged between users of the Site.
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9.
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Compliance
with Laws; Prevention of Fraud or Misrepresentation.
Provider shall at all times (a)
comply with all applicable laws and regulations applicable to its
offer to
purchase, solicitation
to sell, or purchase of, Policies in Life Settlement Transactions,
(b)
obtain and maintain
in good standing all licenses and permits that Provider may be required
to
hold under
applicable laws and regulations, and (c) provide to Life-Exchange,
within
three (3) days after
a request from Life-Exchange, copies of any and all such licenses
and
permits and provide
immediate written notice to Life-Exchange of any actions any federal
or
state regulatory
authority takes, or in writing threatens to take, against Provider
or any
of the Authorized
Users. Provider agrees that it has an affirmative duty and obligation
to
Life-Exchange
to prevent any fraud or misrepresentation by any Registered Broker,
Policyholder Seller or Registered LE Company through Provider’s use of the
Site and the Services, and Provider
shall not take any action or fail to take any action, directly or
indirectly, that could mislead
or defraud any insurance company or any Policyholder Seller in connection
with any Life
Settlement Transaction resulting from the use of the Site or the
Services
and shall use its best
good faith efforts to prevent any such fraud or misrepresentation
by
others. If at any time
Provider becomes aware of any false, incomplete, inaccurate or misleading
information obtained
by Provider from the Site, provided by Provider to the Site or
Life-Exchange or obtained
by Provider through its use of the Services pertaining to any Policy
that
Provider accesses
through the Site, Provider shall immediately provide written notice
thereof to Life-Exchange.
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10.
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Reservation
of Rights.
Life-Exchange and its licensors retain all the intellectual property
and
proprietary
rights in and to all aspects of the Site, including, without limitation,
any related patent rights, copyrights, trade secrets, trade names,
service
marks, associated goodwill, moral
rights, and any other similar rights or intangible assets recognized
under
any laws or international
conventions.
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| 11. |
Term
of Agreement.
This Agreement shall commence on the date accepted by Life-Exchange
as
indicated below until terminated as provided herein. Either Provider
or
Life-Exchange may terminate
this Agreement at any time upon thirty (30) days advance written
notice of
termination
provided to the other party; provided that Life-Exchange may terminate
this Agreement
immediately upon written notice if Provider breaches any provision
of this
Agreement
or any applicable law or regulation or any of Provider’s viatical or life
settlement provider licenses are revoked, suspended, nonrenewed,
lapsed or
otherwise terminated or become
the subject of any action or proceeding therefor. Termination of
this
Agreement shall automatically
terminate Provider's right to access and use the Site, its registration
with Life-Exchange, its Life-Exchange Account (as well as the accounts
of
all Authorized Users), and to right
to receive the Services. Notwithstanding the termination of this
Agreement, Provider shall
be obligated to pay all fees and charges payable
hereunder.
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12.
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Non-Circumvent.
Provider acknowledges that the Site provides the ability to Provider
to
access
on the Site a case file for any Policy submitted to Life-Exchange
by
Registered Brokers for
posting on the Site (“Case
File”
and each Case File accessed by Provider, an “Accessed
Case
File”),
and each Case File may include sufficient information to permit Provider
to determine the identity of the Policyholder Seller and the individual
whose life is, or individuals whose
lives are, insured under such Policy. Provider agrees that (a), during
the
Engaged Registered
Broker Exclusivity Period (defined below), Provider shall not, directly
or
indirectly, (i)
purchase the Policy listed in an Accessed Case File (“Accessed
Policy”),
(ii) make any offer to
purchase such Accessed Policy to the Engaged Registered Broker, (iii)
solicit any offer to sell
such Accessed Policy from the Engaged Registered Broker, or (iv)
enter
into a Life Settlement
Transaction involving such Accessed Policy and the Engaged Registered
Broker, except
pursuant to a transaction involving the Engaged Registered Broker
which
transaction results from Provider’s submission to Life-Exchange of the
highest price for an indication of interest
to purchase such Accessed Policy as part of an E-Settlement Event,
and
(b), during the
General Exclusivity Period (defined below), Provider shall not, directly
or indirectly, (i) purchase
such Accessed Policy, (ii) make any offer to purchase such Accessed
Policy
to any life
settlement broker, (iii) solicit any offer to sell such Accessed
Policy
from any life settlement broker or (iv) enter into a Life Settlement
Transaction involving such Accessed Policy.
“Engaged
Registered Broker”
means, with respect to an Accessed Policy, the Registered
Broker that submitted such Accessed Policy to Life-Exchange. “Engaged
Registered
Broker Exclusivity Period”
means the one (1) year period following the last date on which
Provider accessed the Case File for such Accessed Policy. “General
Exclusivity Period”
means
the ninety (90) day period following the last date on which Provider
accessed the Case File
for such Accessed Policy. Provider agrees that, during the term of
this
Agreement and the one
(1) year period following any termination of this Agreement, Life-Exchange
and its representatives
shall have the right to inspect and audit the books and records of
Provider at Provider’s
offices from time to time to determine whether Provider has purchased
any
Accessed
Policies outside of the Site in violation of this
Agreement.
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13.
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Release
and Waiver.
Provider shall accept all the risks of using the Site and Life-Exchange
shall
not be responsible for any of the acts or omissions of any users
on the
Site. Provider acknowledges that because the Site is merely an online
venue for others to conduct the negotiation
of Life Settlement Transactions, in the event Provider has a dispute
with
one or more
users of the Site, Provider hereby releases Life-Exchange and its
affiliates (and each of their
shareholders, directors, officers, agents, and employees) from any
and all
claims, demands
and damages (actual and consequential) of every kind and nature,
known and
unknown,
suspected and unsuspected, disclosed and undisclosed, arising out
of or in
any way connected with such disputes. Provider waives any applicable
laws
(to the extent permitted
by law) limiting the effect of the above release to claims known
or
suspected to exist
at the time of making the release. Moreover, if Provider is organized
in
California, Provider
waives California Civil Code §1542 (and any laws of similar content which
may be in effect
in other jurisdictions), which
provides:
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“A
general release does not extend to claims which the creditor does not know
or
suspect
to exist in his favor at the time of executing the release, which if known
by
him
must
have materially affected his settlement with the debtor.”
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Breach
by Provider or Authorized User.
Without limiting any other remedies available to Life-Exchange,
Life-Exchange may limit Provider’s use of the Site, issue a warning,
temporarily suspend,
indefinitely suspend or terminate Provider’s status as a Registered
Provider and Provider’s
use of the Services and the Site and refuse to provide access to
E-Settlement Events
to Provider if: (a) Provider breaches any provision of this Agreement;
(b)
Life-Exchange
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is
unable
to verify or authenticate any information provided by Provider to Life-Exchange
or Registered Brokers; or (c) Life-Exchange believes that Provider’s actions may
affect use of or access
to
the Site by others, cause any damage, liability, injury, loss or harm in any
way
to users
of
the Site or Life-Exchange. Provider shall at all times cooperate and comply
with
all requests made by Life-Exchange for the purpose of verifying Provider’s
compliance with the terms and conditions of this Agreement and Life-Exchange
may
inspect and audit Provider’s books
and
records from time to time for such purpose. Provider understands that its
failure to
cooperate and comply in all respects with such requests may result in the
immediate suspension or termination by Life-Exchange of Provider’s access and
use of the Site and its registration with Life-Exchange.
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15.
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No
Warranties.
LIFE-EXCHANGE (A) PROVIDES THE SITE AND THE SERVICES AND ALL INFORMATION
PROVIDED ON THE SITE, INCLUDING THE LE REPORTS, “AS IS” AND WITHOUT
ANY
WARRANTY OR CONDITION OF ANY KIND, INCLUDING, WITHOUT LIMITATION,
ANY
EXPRESS,
IMPLIED OR STATUTORY WARRANTY; AND (B) SPECIFICALLY DISCLAIMS ANY
IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND
NON-INFRINGEMENT. LIFE-EXCHANGE MAKES NO WARRANTIES ABOUT (W) THE
ACCURACY,
RELIABILITY, ACCESSIBILITY, COMPLETENESS, OR TIMELINESS OF ANY
INFORMATION
SUPPLIED BY ANY REGISTERED PROVIDER OR REGISTERED BROKER, USER,
REGISTERED
LE COMPANY OR OTHER THIRD PARTY; (X) WHETHER PROVIDER SHOULD ENTER
INTO
TRANSACTIONS FACILITATED, OFFERED OR ARRANGED BY ANY REGISTERED BROKER
AND
THE ENFORCEABILITY OF ANY SUCH TRANSACTIONS OR OBLIGATIONS; (Y) THE
ACCURACY
OF POSTINGS MADE ON THE SITE BY ANY REGISTERED PROVIDER, REGISTERED
BROKER,
USER, LE COMPANY OR ANY THIRD PARTY; OR (Z) THE RESULTS THAT MAY
BE
OBTAINED
BY USING THE SITE OR SERVICES. Some states do not allow the disclaimer
of
implied
warranties, so the foregoing disclaimer may not apply to Provider.
Provider may also have other legal rights that vary from state to
state.
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16.
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No
Guaranty of Uninterrupted Service.
LIFE-EXCHANGE IN NO WAY GUARANTEES TIMELY, CONTINUOUS, UNINTERRUPTED
OR
SECURE ACCESS TO OR AVAILABILITY OF THE SITE OR SERVICES,
AND OPERATION OF THE SITE MAY BE INTERRUPTED (A) BY LIFE-EXCHANGE
OR
THOSE
UNDER ITS CONTROL IN LIFE-EXCHANGE’S SOLE DISCRETION FOR MAINTENANCE,
UPGRADES,
OR SITUATIONS THAT LIFE-EXCHANGE DEEMS PRESENT A RISK TO THE SITE
OR
ANY
USERS OF THE SITE, OR (B) FACTORS OUTSIDE OF LIFE-EXCHANGE’S
CONTROL.
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17.
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Limitation
on Life-Exchange’s Liability.
IN NO EVENT SHALL LIFE-EXCHANGE, ITS AFFILIATES, OR
ANY OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS
BE
LIABLE
FOR LOST PROFITS OR ANY SPECIAL, PUNITIVE, MULTIPLE, INCIDENTAL OR
CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICES
OR THIS AGREEMENT, WHETHER SUCH LIABILITY IS BASED ON WARRANTY,
CONTRACT,
TORT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, AND WHETHER SUCH PARTY
IS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE
TOTAL
LIABILITY OF LIFE-EXCHANGE, ITS AFFILIATES, OR ANY OF THEIR SHAREHOLDERS,
DIRECTORS,
OFFICERS AND EMPLOYEES TO PROVIDER AND ANY THIRD PARTIES IN ANY
CIRCUMSTANCE
EXCEED ONE THOUSAND DOLLARS ($1,000.00). Some states do not allow
the
exclusion or limitation of incidental or consequential damages, so
the
above limitation or exclusion may not apply to
Provider.
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18.
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Indemnity
by Provider of Life-Exchange.
Provider covenants and agrees with Life-Exchange that
Provider shall reimburse and indemnify and hold Life-Exchange and
its
affiliates, and any of their respective shareholders, directors,
officers,
employees, agents (the “Life-Exchange
Indemnified
Parties”)
harmless from, against and in respect of any and all actions, suits,
claims,
interest, penalties, proceedings, investigations, audits, demands,
losses
(direct or indirect),
liabilities, damages, assessments, fines, judgments, costs and expenses
(including, without
limitation, reasonable attorneys’ fees and costs of the investigation)
(collectively, “Claims”)
incurred by any of the Life-Exchange Indemnified Parties that result
from
(a) any
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inaccuracy
in or breach of any representations or warranties made by the Provider or any
of
the Authorized Users in this Agreement, the exhibits attached hereto, the Site
Agreements or any
other
information furnished to the Life-Exchange Indemnified Parties by or on behalf
of Provider
or any of the Authorized Users, (b) any breach, nonfulfillment or violation
of
any duty, covenant or agreement of Provider or any of the Authorized Users
under
this Agreement or the agreements
and instruments contemplated herein, (c) any violation by Provider or the
Authorized
Users of any law or regulation or any of the rights of a third party, (d) any
unauthorized
use of Provider’s Life-Exchange Access Code, (e) any claims or litigation
matters which
relate or are due to the conduct of Provider or the Authorized Users, (f) any
fees owed by
Provider to a Registered Broker that Provider must pay directly from Provider's
escrow agent
as
permitted under Section 4(b) hereof, (g) any fees or compensation owed by
Provider to
a
Registered LE User and (h) any claims made by a third party, including without
limitation, Registered
Brokers or Policyholder Sellers, alleging facts which, if true, would entitle
the Life-Exchange
Indemnified Parties to indemnification pursuant to (a) through (h) above, and
(i) any fees
or
expenses (including without limitation, reasonable attorneys’ fees) incurred by
the Life-Exchange
Indemnified Parties in enforcing their rights hereunder.
| 19. |
No
Agency. No
agency, partnership, joint venture, employee-employer or franchiser-franchisee
relationship is intended or created by this
Agreement.
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20.
|
Notices.
Except as explicitly stated otherwise, any notices required or permitted
to be given under
this Agreement shall be given to Life-Exchange by contacting Life-Exchange
as directed on
the Site (see “Contact Us” on Site) and to Provider at the email address
provided by Provider
to Life-Exchange during Provider’s registration process. Notice shall be
deemed given
twenty-four (24) hours after an email is sent. Alternatively, either
party
may give the other
party notice by certified mail, postage prepaid and return receipt
requested, to Life-Exchange’s office address set forth below (for notice
to Life-Exchange) or to Provider’s office address
provided by Provider to Life-Exchange during Provider’s registration
process (for notice
to Provider). In such case, notice shall be deemed given three (3)
days
after the date of mailing.
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21.
|
Resolution
of Disputes.
Each party hereto irrevocably waives trial by jury in any action
or
claim
brought or made in connection with this Agreement. Any action, claim
or
controversy at law
or equity that arises out of this Agreement or the Services, other
than
any action, claim or controversy
arising under Section 6 or Section 12 of this Agreement, shall be
resolved
exclusively
through binding arbitration administered by JAMS in Dade County,
Florida
using a single
arbitrator in accordance with JAMS’ applicable rules. Any judgment on the
award rendered
by the arbitrator may be entered in any court having jurisdiction
thereof.
The prevailing
party in the arbitration proceeding, as determined by the arbitrator,
shall be entitled to
recover its reasonable attorneys’ fees and costs incurred in connection
with such arbitration
proceeding.
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22.
|
Governing
Law and Jurisdiction.
This Agreement shall be governed by, and enforced and construed
in accordance with, in all respects by the laws of the State of Florida
as
such laws are
applied to agreements entered into and to be performed entirely within
Florida between Florida
residents without giving effect to its conflicts or choice of laws
principles, doctrines or rules.
The exclusive venue for all actions, relating in any manner to this
Agreement or use of the
Site and Services, shall be in a federal or state court of competent
jurisdiction in Dade County,
Florida . Each party hereby consents and submits to the in personam
jurisdiction of such
courts, and to the extent permitted by law, hereby consents that
all
services of process may be made by any nationally recognized overnight
courier, or by certified or registered mail, postage
prepaid and return receipt requested. Each party waives any objection
based on forum
non conveniens and waives any objection to venue of any action instituted
hereunder to
the extent that an action is brought in the courts identified above.
A
final judgment in any such
action shall be conclusive and may be enforced in any other jurisdiction
in any manner provided by law.
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23.
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Severability.
If any provision of this Agreement is held by a court of competent
jurisdiction or applicable
state or federal regulator and their implementing regulations to
be
invalid, void or unenforceable,
all the remaining provisions will nevertheless continue in full force
and
effect.
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24.
|
Assignment.
This Agreement may be assigned by Life-Exchange at any time without
the
approval
of Provider. Life-Exchange will provide notice to Provider of any
such
assignment of this Agreement in accordance with the section of this
Agreement entitled “Notices.”
Provider may not assign this Agreement or any of its rights created
hereunder, or delegate any of its duties
or obligations created hereunder to any other person or entity, in
whole
or in part without
the prior written consent of Life-Exchange. Subject to the foregoing
restriction, any permitted assignment of this Agreement will be binding
on, inure to the benefit of and be enforceable against the parties
and
their respective successors and
assigns.
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25.
|
Headings.
Headings used herein are for reference purposes only and in no way
define,
limit, construe or describe the scope or extent of such
section.
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26.
|
No
Waiver.
Life-Exchange’s failure to act with respect to a breach by Provider shall
not be deemed to be or constitute a waiver of Life-Exchange’s right to act
with respect to subsequent or similar
breaches.
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27.
|
Entire
Agreement; Modifications.
This Agreement (which includes the Site Agreements) sets forth
the entire understanding and agreement between Provider and Life-Exchange
with respect
to the subject matter hereof. Life-Exchange may modify this Agreement
by
giving prior notice of such changes to Provider and those changes
shall be
effective as to Provider’s participation in subsequent E-Settlement
Events.
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28.
|
Force
Majeure.
Life-Exchange shall not be liable for delay or failure in any of
its
performance hereunder
due to causes beyond its reasonable control, including but not limited
to,
an act of God,
terrorism, war, natural disaster, governmental regulations, communication
or utility failures
or casualties or the failures or acts of third
parties.
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29.
|
Provider's
Representations and Warranties.
Provider hereby represents and warrants to Life-Exchange
that (a) Provider is appropriately licensed in States as a viatical
or
life settlement provider
as required under all applicable laws and regulations; (b) Provider
has
all requisite right
and authority to enter into this Agreement; (c) Provider’s performance of
this Agreement will
not violate, conflict with, or result in a material default under
or
breach of any other agreement,
including without limitation, any confidentiality agreement between
Provider and any
third party; (d) any data or information submitted to Life-Exchange
by
Provider is true, accurate and correct, (e) Provider is participating
in
the Life Settlement Transaction for the Provider's
own account for investment and not with a view to, or for sale in
connection with, any
distribution thereof in any transaction or series of transactions
that
would be in violation of
the securities laws of the United States or any state thereof, (f)
Provider is not subject to the
Fair Credit Reporting Act, 15 U.S.C. § 1681 et
seq., (g)
any Provider Content provided to Life-Exchange
for the Site: (i) will not infringe or misappropriate any third party's
copyright, patent,
trademark, trade secret or other intellectual property right or any
proprietary rights of any third party; and (ii) will not violate
any law,
statute, ordinance or regulation, including without
limitation, those governing export control, unfair competition,
anti-discrimination or false
advertising, and (h) Provider has valid errors & omissions insurance
coverage insuring liability
arising from Life Settlement
Transactions.
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30.
|
Survival
of Certain Sections.
The Sections entitled “Payment
of Fees”,
“Confidentiality
and Privacy
Obligations,”
“Reservation
of Rights,”
“Non-Circumvent,”
“Release,”
“Limitation
on Life-Exchange’s
Liability,”
“Indemnity,”
“Resolution
of Disputes”
and “Governing
Law”
shall survive
any termination or expiration of this
Agreement.
|
(Signature
page follows.)
Page
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PROVIDER:
As
an
officer or other authorized representative of Provider, I am authorized to
execute this Agreement on
Provider’s behalf.
|
Name
of Provider:
Signature:
Name:
Title:
Date:
Address:
|
________________________________
________________________________
________________________________
________________________________
________________________, 200_____
________________________________
________________________________
________________________________
|
ACCEPTED
BY LIFE-EXCHANGE:
Life-Exchange,
Inc.
|
Signature:
Name:
Title:
Date:
Address:
|
________________________________
________________________________
________________________________
________________________, 200_____
0000 Xxxxxxxx Xxxx.
Xxxxx
0000
Xxxxx,
XX 00000
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EXHIBIT
A
List
of Authorized Users of Provider
1.______________________________________________
2.______________________________________________
3.______________________________________________
4.______________________________________________
5.______________________________________________
6.______________________________________________
7.______________________________________________
8.______________________________________________
9.______________________________________________
10._____________________________________________
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EXHIBIT
B
Life-Exchange’s
Fees
Maintenance
Fees:
Provider
shall pay to Life-Exchange an annual maintenance fee of $5,000.00 due upon
execution of this Provider User Agreement and renewable every twelve (12) months
thereafter. This maintenance fee
is
for up to 10 system Users. Additional Users can be added at a cost of $500.00
per User.
Transaction
Fees:
Provider
shall pay to the Escrow Agent, who shall then pay such amount to Life-Exchange,
the following transaction
fees:
A
fixed
licensing fee for each Life Settlement Transaction for a Policy referenced
in an
Accessed
Case File that is consummated by Provider, in the amount equal to a percentage
of such life insurance policy’s face amount of death benefit as set forth below
(each
a
“Fee”),
which
shall be due and payable by Provider to the Escrow Agent, who shall then
distribute such amount to Life-Exchange, upon the later of the date of the
consummation
of such Life Settlement Transaction or the date following the expiration of
the
applicable rescission period (whether required by applicable law or provided
by
Provider under the terms of its agreement for the Life Settlement Transaction),
if any, during
which the applicable Policyholder Seller may rescind such Life Settlement
Transaction.
To
be
eligible for a lower Fee, Provider must demonstrate three (3) consecutive months
of volume
purchasing. After Provider receives a lower Fee, should Provider fail to sustain
at least
the
same volume of purchasing for one (1) month, Provider shall return to the
previous
Fee.
$0-$24
million in monthly transactions 1% transaction fee
$25-$49
million in monthly transactions 0.85% transaction fee
$50-$99
million in monthly transactions 0.75% transaction fee
$100-$249
million in monthly transactions 0.65% transaction fee
$250
million or more in monthly transactions 0.50% transaction fee
A
Fee of
0.25% shall be paid by Provider for any Life Settlement Transaction for a Policy
referenced
in an Accessed Case File that is consummated by Provider that has a face
value
of
$100,000 or less regardless of Provider’s volume. *Note: this Fee of 0.25% shall
not apply to Policies that have been divided solely to meet reduced transaction
fees (e.g.,
the
division of a $1 million Policy into ten (10) smaller $100,000
Policies).
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