Insurance Agent and Surplus Lines Broker Referral Agreement
Lease Guarantee and Security Deposit Replacement Surety Bonds
Last Updated: April 19th, 2024
Introduction
By completing and submitting the form below or by accessing or using any of GuarantR, Inc.’s (“TG”) offerings, products, or service controlled by this Insurance Agent and Surplus Lines Broker Referral Agreement (the “Agreement”), owner , operator, or manager (“You”) agree to accept all terms and conditions of this Agreement, along with any other applicable order forms, addendums, scopes of services, or any other controlling terms executed between You and TG.
You understand that this Agreement is enforceable like any written agreement signed by you. If You do not agree to these terms and conditions, You may not use any of TG’s offerings, products, or services controlled by this Agreement.
If you are using any of TG’s offerings, products, or services controlled by this Agreement as an employee, contractor, or agent of a corporation, partnership or similar entity, then you must be authorized to sign for and bind such entity in order to accept the terms of this Agreement, and you represent and warrant that you have the authority to do so. The rights granted under this Agreement are expressly conditioned upon acceptance by such authorized personnel.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Your initial access and use of TG Services or (b) the effective date of any Order Form.
Recitals
Whereas TG is a licensed property and casualty insurance agent and broker and a licensed excess lines broker that provides insurance and surety products and other services for the benefit of landlords and tenants, including surety bonds: a lease guarantee product (the “LG Product”) and a residential security deposit replacement product (the “SDR Product”) (LG Product and SDR Product, collectively, as the same may be updated or modified from time to time, “TG Products”), and in connection with providing such products offers access to a software as a service platform (“TG Platform”) (TG Products and TG Platform, collectively known as “TG Services”).
Whereas You are an owner or operator or manager, serving as, or acting on behalf of the Landlord, with respect to certain residential rental properties and are interested in utilizing TG’s offerings, TG Products, and services and is interested in referring TG Products to Tenants and Tenant Prospects, all on the terms and conditions hereinafter set forth.
Definitions
“Converted Tenant” means a Tenant or Tenant Prospect that has entered into a definitive agreement with TG to obtain TG Services or TG Products (a “Definitive Agreement”).
“Subject Communities” means those residential properties owned, operated, or managed by You where You refer Tenants and Tenant Prospects to TG for TG Products.
“Tenant” means a member of the public who has entered into a residential lease agreement with You.
“Tenant Prospects” means a member of the public who is seeking to source residential housing accommodations from You.
“Users” means an employee, agent, affiliate, consultant, or other authorized individual You have permitted to use or gain access to TG Platform.
Representations and Warranties; Compliance with Laws
Each Party represents and warrants to the other 1) that it has all necessary power and authority to enter into this Agreement and all other agreements and instruments to be executed by such Party as contemplated by this Agreement; 2) that the execution and delivery of this Agreement will not violate or result in the breach of, or constitute a default under, or conflict with, any agreement, contract, instrument, order, judgment, award, decree, or any other restriction of any kind or character by which such Party is bound.
TG represents and warrants: 1) that it holds a resident property and casualty insurance license from the New York State Department of Financial Services, 2) that it holds non-resident property and casualty insurance licenses in all other states in the United States that it offers services, including surplus lines broker’s licenses in selective jurisdictions, including California, 3) that is shall comply with all applicable insurance codes and regulations, and 4) that it is authorized to sell and solicit TG Products.
You represent and warrant: 1) that, with respect to Subject Communities, You are either the owner of record, duly contracted to manage, or duly authorize to bind such Subject Communities to the terms of this Agreement; 2) that You shall not use TG Products in a discriminatory manner; 3) that You shall comply with all federal, state, and local housing, landlord-tenant, and applicable ordinances, regulations, statutes, and codes when using TG Products.
Both Parties shall comply with all applicable federal, state, and local laws and regulations in performing their responsibilities, including, but not limited to, the DTPA, CAN-SPAM, TCPA, and DMPEA.
Responsibilities
TG Responsibilities: TG will maintain services and necessary platforms to offer TG Products to You, Tenants, or Tenant Prospects. At its discretion, TG will deliver to You physical or digital flyers or brochures, marketing or promotional letters or e-mails (“Marketing Materials”). TG also will deliver transactional and necessary letters or e-mails to Tenants or Tenant Prospects to facilitate the entry of the lease or entry of a definitive agreement with TG for the procurement of desired insurance products (“Transactional Materials”). TG shall be solely responsible for all texts and intellectual property to be included in the Marketing Materials and Transactional Materials. TG or any other duly authorized insurance agents or brokers shall have exclusive authority to sell TG Products, handling discussions of policy terms and conditions, and any questions related to TG Products.
Your Responsibilities: You agree to refer Tenants or Tenant Prospects to TG for TG Products. You agree to make commercially reasonable efforts to distribute Marketing Materials to Tenants and Tenant Prospects. You shall obtain all necessary consents and provide all necessary notices to disclose to TG any personal information of Tenants or Tenant Prospects. While nothing herein shall prohibit Your Tenants or Tenant Prospects from utilizing other insurance products or agents, You shall not enter into any similar referral arrangements for any products that are similar to TG Products with other insurance agents or brokers. You shall ensure Your use of any TG Product complies with all state and local laws landlord-tenant laws, including appropriate limits on security deposits and providing appropriate notices in applications, lease agreements, and prior to claim submissions. You shall not discuss any specific insurance policy terms and conditions and shall likewise instruct its agents, employees, and representatives (unless they are licensed insurance producers). Where You engage a third-party service provider for Tenant or Tenant Prospect onboarding or processing, all costs and fees, if any, associated with hosting, presenting, or delivering any Marketing Materials or Transactional Materials through the third-party service provider shall be the responsibility of You.
TG Platform Access.
Subject to the terms and conditions of this Agreement and any respective terms and conditions for specific TG Platforms, including the Account Creation and Access Terms & Conditions, available at https://www.theguarantors.com/account-creation-access-terms, which may be updated and amended from time to time, TG hereby grants to You and Users, for the duration of the Term, a limited, non-exclusive, non-transferrable and non-sublicensable right to access and use the TG Platform for Your own internal business purposes in furtherance of this Agreement. You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make available to any other third party any services offered by TG or through the TG Platform.
You shall ensure that each User does not do any of the following, (collectively “Prohibited Use”): (a) decompile, disassemble, or reverse engineer the TG Services or the TG Platform, or attempt to obtain or perceive the source code from which any component of the TG Services or the TG Platform are compiled or interpreted, and You acknowledge that nothing in this Agreement will be construed to grant You any right to obtain or use such code; (b) duplicate or create any derivative product from the TG Services or any component of the TG Services; (c) license, sublicense, lease, resell, or transfer the TG Services or access to the TG Platform to a third party or allow third parties (other than Users as permitted herein) to gain access to the TG Platform; (d) transmit material containing viruses, malware, or other harmful or deleterious computer code, files, scripts, agents, or programs; (e) interfere with or disrupt the integrity or performance of the TG Services or the TG Platform or the data contained therein; (f) attempt to bypass, exploit, defeat, or disable limitations or restrictions placed on the TG Services or the TG Platform; (g) attempt to gain access to the TG Services or the TG Platform by automated means, such as bots; (h) attempt to gain unauthorized access to the TG Services or TG Platform; (i) create a false identity or attempt to mislead others as to the identity of the sender or the origin of any data or communications; (j) access or use tor (k) use the TG Services or the TG Platform to violate any applicable law or the terms of this Agreement.
This Agreement is expressly made subject to any applicable law regarding export from the United States of computer software, technical data, or derivatives. You agree that You will not export, directly or indirectly, any technical data (as defined by the US Export Administration Regulations) produced or provided under this Agreement or any direct product of such technical data, including software, to a destination to which such export or re-export is restricted or prohibited by US or non-US law. This obligation survives the termination or expiration of this Agreement.
Engagement of Converted Tenant; Acknowledgement Bond General Terms & Conditions; Surplus Line Notice
Any of TG Products provided to Converted Tenants shall be at such prices and on such terms or conditions as TG and its carrier partners shall prescribe, in its sole and absolute discretion in accordance with the applicable rates, forms, and filings.
Subject to the applicable law, the Bond General Terms & Conditions, and the General Agreement of Indemnity, TG shall have the full right to deal with a Converted Tenant in connection with any TG Product the Converted Tenant procures without any liability or obligation to You for any action so taken, including specifically the right to (i) refuse, reject, cancel, or consent to the cancellation or return of, all or any part of any of TG Product, and (ii) grant amendments, modifications, supplements, compromises, or returns in connection with any TG Product.
Both Parties shall comply with the respective and applicable Bond General Terms & Conditions (“Bond General Terms & Conditions”), current copies which are available at https://www.theguarantors.com/general-terms-and-conditions, and which may be amended from time to time, and are, where applicable, duly field with the appropriate regulatory agencies and governmental entities. Such amendments are effective immediately when posted. The Bond General Terms & Conditions for the respective TG Products are incorporated by reference and accepted and acknowledged by You.
For bonds issued in California, all TG Products are surplus line insurance products in California. Surplus line insurance products are subject to federal and state regulations. Surplus line insurance products are not licensed products filed with the State of California and the insurer is not licensed by the State of California.
Term
This Agreement shall commence on the Effective Date and continue pursuant to the terms of the applicable order form, or if no order form is executed, it shall terminate upon ninety (90) days written notice by You or thirty (30) days written notice by TG.
Notwithstanding the foregoing:
If either Party materially breaches any provision of this Agreement and fails to (i) remedy such breach within fifteen (15) calendar days of receipt of notice from the non-breaching Party; or (ii) where additional time is required, commence good faith efforts to remedy such breach within fifteen (15) calendar days of receipt of notice from the non-breaching Party, then the non-breaching Party may immediately terminate this Agreement.
Either Party may terminate this Agreement upon written notice to the other Party in the event the other Party (i) discontinues its business; (ii) files a petition for bankruptcy; (iii) becomes insolvent; or (iv) makes an assignment for the benefit of creditors.
In the event of any termination of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement.
Legal/Regulatory Notice; Data Privacy & Security
You acknowledge and accept receipt of the Legal/Regulatory Notice, available at https://www.theguarantors.com/legal-regulatory, including all relevant notices concerning electronic signatures (“E-SIGN”) and electronic transactions.
Data Privacy & Security.
TG will use generally accepted information security practices for transmitting and storing data You provide in compliance with applicable laws and TG’s privacy policy available at https://www.theguarantors.com/privacy. TG represents and warrants that it will (a) use and maintain administrative, physical and technical safeguards consistent with prevailing industry standards to prevent the unauthorized access, use, storage, or disclosure of data; and (b) establish, maintain, and comply with an information security program that shall: (i) meet commercially reasonable standards to safeguard data; (ii) ensure compliance with applicable data security and privacy laws; (iii) protect against the destruction, loss, access, disclosure or alteration of Confidential Information; and (iv) include an appropriate network security program (that includes, without limitation, encryption of all sensitive or private data and multi-factor authentication).
You shall use generally accepted information security practices when accessing TG Platform and storing any information from the TG Platform. You represent and warrant that you will (a) use and maintain administrative, physical and technical safeguards consistent with prevailing industry standards to prevent the unauthorized access, use, storage, or disclosure of data; and (b) establish, maintain, and comply with an information security program that shall: (i) meet commercially reasonable standards to safeguard data; (ii) ensure compliance with applicable data security and privacy laws; (iii) protect against the destruction, loss, access, disclosure or alteration of Confidential Information; and (iv) include an appropriate network security program (that includes, without limitation, encryption of all sensitive or private data and multi-factor authentication).
To extent applicable, Parties shall comply with the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (CPRA) and any other applicable local, state, or federal data security regulations and laws.
Parties shall: (x) only use, retain, collect, and disclose Compliance Output for its intended business purposes; (y) promptly comply with any requests in connection with this Agreement made pursuant to the CPRA; and (z) maintain information systems aligned with industry standards.
Parties shall not: (x) disclose, share, or sell any Compliance Output to any other party; (y) use the Compliance Output for any purpose other than those prescribed in this Agreement; (z) attempt to or actually re-identify any Aggregated data.
Parties further agree to comply with all other relevant state and federal data privacy and cybersecurity rules, regulations, and laws, including, but not limited to, the Colorado Privacy Act ("CPA"), the Connecticut Data Privacy Act ("CTDPA"), the Delaware Personal Data Privacy Act (“DPDPA”), the Indiana Consumer Data Protection Act (“ICDPA”), the Maryland Personal Information Protection Act (“MPIPA”), the Montana Consumer Data Privacy Act (“MCDPA”), the Utah Consumer Privacy Act ("UCPA"), the Virginia Consumer Data Protection Act ("VCDPA").
Intellectual Property
Each Party understands and acknowledges that the other Party owns all of its respective trademarks, logos, copyrights, patents, and other intellectual property and nothing herein grants the other any rights to use the other Party’s intellectual property. Notwithstanding the foregoing, TG authorizes You to reproduce and distribute Marketing Materials in order to carry out the purposes of this Agreement.
Indemnification
To extent permitted by law, TG shall indemnify, defend, and hold harmless You from and against any and all losses, damages, liabilities, costs ("Losses") incurred by You resulting from a third-party claim, suit, action, or proceeding ("Third-Party Claim") that TG Products or the TG Platform or any use of either, in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that You promptly notify TG in writing of such Third-Party Claim, cooperates with TG, and allows TG sole authority to control the defense and settlement of such Third-Party Claim; (ii) if a Third Party-Claim is made or appears possible, You agree to permit TG, at TG's sole discretion, to (A) modify or replace the TG Product or TG Platform, or component or part thereof, to make it non-infringing, or (B) obtain the right for You to continue use. If TG determines that neither alternative is reasonably available, TG may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to You; (iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the either TG Products or TG Platform in combination with data, software, hardware, equipment, or technology not provided by TG or authorized by TG in writing; (B) modifications to either not made by TG; (C) Your disclosed data; (D) third-party services.
To extent permitted by law, You shall indemnify, hold harmless, and, at TG's option, defend TG from and against any Losses resulting from any Third-Party Claim, including from Tenants or Tenant Prospects that any data you disclosed, infringes, violates, or misappropriates such third party's US intellectual property rights or privacy rights or/and any Third-Party Claims based on Your or any User's (i) negligence, willful misconduct, failure to comply with the law; (ii) use of TG Products or the TG Platform in a manner not authorized by this Agreement; (iii) use of TG Services in combination with data, software, hardware, equipment, or technology not provided by TG or authorized by TG in writing; (iv) use of any TG Products or TG Services violates the Third-Party’s rights provided by relevant landlord-tenant statutes or rules, or (v) modifications to TG Services not made by TG, provided that You may not settle any Third-Party Claim against TG unless TG consents to such settlement, and further provided that TG will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
WARRANTIES & LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL DELIVERABLES AND SERVICES ARE PROVIDED “AS-IS” AND TG MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF, ANY SERVICE, WEBSITE, REPRESENTATIVE SERVICES OR PRODUCTS OR SERVICES, OR OTHER DELIVERABLES PROVIDED HEREUNDER. FURTHER TG DOES NOT REPRESENT OR WARRANT THAT ALL DELIVERABLES, PRODUCTS, AND SERVICES AFOREMENTIONED WILL BE UNINTERRUPTED OR ERROR-FREE, TG HEREBY DISCLAIMS ALL IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHER LAW, FROM A COURSE OF DEALING OR USAGE OF TRADE.
IN NO EVENT SHALL TG BE LIABLE TO YOU UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, OR DATA, EACH OF WHICH IS HEREBY EXCLUDED BY THIS AGREEMENT. IN NO EVENT SHALL TG’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE OF ACTION WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED TWENTY-FIVE THOUSAND DOLLARS ($25,000).
Miscellaneous
Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received (1) upon sending of an email (provided sender demonstrates evidence of transmission) or upon confirmation of a receipt of a facsimile transmission; (2) if hand delivered, upon delivery against receipt or upon refusal to accept the notice; or (3) if delivered by a standard overnight courier, one business day after deposit with such courier, postage prepaid, in each case, addressed to such Party at the address set forth in the order form or duly filed with the Party’s domiciled state’s Secretary of State. Either Party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this paragraph for the giving of notice.
Force Majeure. In no event shall TG be liable to You, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond TG's reasonable control.
No Insurance. You understand that this Agreement does not guarantee the issuance of any bonds or insurance products nor does this Agreement constitute insurance coverage.
Amendment and Modification. TG may amend or modify this agreement prospectively, but not retroactively, on appropriate notice and/or posting. Continued use of the services or products constitute Your acceptance of any amendments or modifications. You may not amend or modify this Agreement unless it is in writing and signed by an authorized representative of each Party.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Mandatory Arbitration; Consent to Jurisdiction; Waiver of Jury. This Agreement shall be interpreted and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws provisions. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this provision to arbitrate shall be determined by arbitration in the State of New York. The arbitration shall be confidential, to extent permitted by law, and administered by a mutually agreed upon arbitration service provider, pursuant to that arbitration service provider’s rules and procedures, or to the extent an arbitration service provider cannot be mutually agreed to, it shall be administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect. Judgment on the Award, if any, may be entered in any court having jurisdiction and/or in a court of competent jurisdiction. This provision may be waived only upon written consent by TG. To extent TG waives mandatory arbitration, each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the State and Federal courts located in New York, New York, for any action, litigation or proceeding arising from or relating to this Agreement and waives their respective rights to a jury trial.
Successors and Assignment. This Agreement shall inure to the benefit of, and be binding upon, Your successor-in-interest as a result of the purchase, merger, consolidation of any Subject Communities or all or substantially all of Your assets. Notwithstanding the foregoing, You may not assign any of Your rights or delegate any of Your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of TG. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder.
No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
Non-Exclusivity. Nothing herein is intended nor shall be construed as creating an exclusive arrangement between You and TG. This Agreement shall not restrict TG’s ability to offer TG Products or TG Services to any other individual, entity, or group.