LIFE-EXCHANGE, INC. BROKER USER AGREEMENT
Exhibit
10.3
LIFE-EXCHANGE,
INC.
This
Broker User Agreement (the “Agreement”)
is
entered into between Life Exchange, Inc., a Nevada corporation (“Life-Exchange”),and
__________________ (“Broker”).
Broker
desires to become a Registered Broker (as defined below) in order to participate
in E-Settlement
Events (as defined below) via the Life-Exchange web site located at www.life-exchange.comand
all
associated pages (the “Site”).
In
consideration of Broker’s inclusion as a Registered Broker with Life-Exchange,
Broker hereby agrees with,
and
covenants in favor of Life-Exchange as follows:
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1.
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Broker’s
Compliance with Site Agreements. Broker
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,
the
“Site
Agreements”),and
the terms and conditions of this Agreement.
By participating in an E-Settlement Event, Broker acknowledges that
it has
read and
agrees to each of the Site Agreements, as they may be amended from
time to
time. Broker
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 Broker. In
accordance with this Agreement, Broker will be issued a user identification
number and an access number for accessing the Site (the “Broker’s
Life-Exchange
Access Code”). Broker
may authorize only its employees to access the Services and Broker’s
Life-Exchange Account on behalf of Broker (“Authorized
Users”). Broker
shall cause all
Authorized Users to comply with the provisions of this Agreement
and the
Site Agreements and
shall not permit any of its employees, who become Authorized Users
to,
disclose the Broker’s
Life-Exchange Access Code to any person or entity, other than the
Authorized Users, or
permit any person or entity, other than the Authorized Users, to
use the
Broker’s Life-Exchange
Access Code, the Site or the Services. A complete list of all initial
Authorized Users who
are authorized to act under Broker’s Life-Exchange Account is included on
Schedule
Aattached
hereto and incorporated herein by this reference. Broker can add
or remove
Authorized Users by sending a written request to Life-Exchange and
Life-Exchange shall respond
to Broker’s request within five (5) business days of receiving such
notice. Broker shall
immediately provide written notification to Life-Exchange upon the
termination or suspension by Broker 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.
Broker agrees with Life-Exchange that Broker shall be solely responsible
for all activity conducted using the Broker’s Life-Exchange Access Codes
and shall notify Life-Exchange immediately
if any Authorized User’s access must be terminated or any of Broker’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 Broker or any other
person or
entity for any unauthorized use of a Broker Life-Exchange Access
Code.
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E-Settlement
Events. The
Site provides an on-line marketplace operated by Life-Exchange
that
provides a venue for Registered Brokers (defined below) 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 (“Policyholder
Seller”) in
Life Settlement Transactions (as defined below),
life insurance policies for sale to licensed viatical or life settlement
providers registered
with Life-Exchange and authorized to engage in E-Settlement Events
(“Registered
Providers”)
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 of the Site. ((a) and (b) collectively, an “E-Settlement
Event”). “Registered
Broker” means
a licensed viatical or life settlement broker as required under
applicable
law, who has 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, 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 and “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 Broker, 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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Broker
Content. Broker
grants Life-Exchange and the life expectancy companies with authorized
access to the Site (the “LE
Companies”) the
right to use the content submitted by Broker
to Life-Exchange (the “Broker
Content") for
all purposes associated with the Site and as
disclosed in the Life-Exchange Privacy Policy. Life-Exchange and
the LE
Companies are entitled to copy and store all information transmitted
through the Site by or to Broker 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 5 below and by each LE Company pursuant to its
agreement with
Life-Exchange. 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 of Registered Providers or violate
applicable laws.
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5.
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Confidentiality
and Privacy Obligations.
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(a)
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Broker
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 5; (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 5 shall extend for a period of two
(2) years from termination, expiration or cancellation of Broker’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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Broker
acknowledges and agrees that in the course of using the Site, Broker
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 Broker, Registered Providers or
Registered LE Companies
pursuant to written authorizations executed by the Insureds. Broker
agrees
with, and
covenants to, Life-Exchange that all such authorizations that relate
to
PHI Broker 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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Broker
further acknowledges and agrees that in the course of its use of
the Site,
Broker 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 ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
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
Broker shall use
such NPI solely in connection with its use of the Site and consummation
of
Life Settlement
Transactions. Broker may have executed a written agreement with such,
Registered
LE Companies, Registered Brokers or Registered Providers who provide
NPI
to Broker
that requires Broker to maintain the confidentiality, privacy and
security
of such NPI in accordance
with GLBA, or the disclosure of such information to Broker may be
by
written authorization
or consent of the Policyholder Seller or Insured. Broker agrees with,
and
covenants to, Life-Exchange that (1) Broker 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 Broker 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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The
Site is an Online Venue for Indications of Interests to Buy and Sell.
The
Site is only a venue
and communications medium to facilitate Registered Providers and
Registered Brokers to
exchange information relating to proposed Life Settlement Transactions.
Broker 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; and (e)
Life-Exchange is not involved in any of the 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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7.
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Compliance
with Laws; Prevention of Fraud and Misrepresentation. Broker
shall at all times (a)
comply with all applicable laws and regulations applicable to its
solicitation to purchase, offer
to sell, arrangement of a purchase or sale, and brokerage of the
purchase
and sale of Policies
in Life Settlement Transactions; (b) obtain and maintain in good
standing
all licenses and
permits that Broker 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 Broker or any of the Authorized Users. Broker agrees
that it
has an affirmative
duty and obligation to Life-Exchange to prevent any fraud or
misrepresentation by any
Registered Broker or Policyholder Seller through Broker’s use of the Site
and the Services, and
Broker shall not take any action or fail to take any action, directly
or
indirectly, that could mislead
or defraud any insurance company, any Policyholder Seller or any
Registered Provider in
connection with any Life Settlement Transaction resulting from Broker’s
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 Broker becomes
aware
of any false, inaccurate, incomplete
or misleading information obtained by Broker from the Site, provided
by
Broker to the
Site or Life-Exchange or obtained through Broker’s use of the Services
pertaining to any Policy, Broker shall immediately provide written
notice
thereof to Life-Exchange.
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8.
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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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9.
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Term
of Agreement.This
Agreement shall commence on the date accepted by Life-Exchange
as
indicated below until terminated as provided herein. Either Broker
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 Broker breaches any provision
of this
Agreement or any applicable law or regulation. Termination of this
Agreement shall automatically
terminate Broker'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 all
Services.
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10.
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Non-Circumvent.During
the Exclusivity Period (as defined below), Broker agrees that Broker
shall
not, directly or indirectly, offer to sell the Policy to, solicit
any
offers to purchase the Policy
from, or act as a life settlement broker for any life settlement
transaction involving the Policy
with, (a) any of the parties listed on the Site as Registered Providers,
except pursuant to a
transaction with a Registered Provider resulting from Broker’s submission
of the Policy to the
Site for an E-Settlement Event for which such Registered Provider
submits
as part of the E-Settlement
Event the highest price for an indication of interest to purchase
the
Policy, (b) any
of the affiliates of any of the parties listed on the Site as Registered
Providers, or (c) any other
person or entity. “Exclusivity
Period” means
the period commencing on the first date on which
Broker submits the Policy to the Site for an E-Settlement Event and
ending
on the one (1)
year period following the date on which the Policy is removed or
withdrawn
from the Site.
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Broker
shall only submit to the Site Policies with respect to which Broker has the
exclusive right
to
offer for sale on behalf of the applicable Policyholder Seller. Broker shall
include the exclusivity
provision contained in Schedule
Battached
hereto, in each agreement it enters into
with
its Policyholder Seller customers, or in the alternative, in a separate letter
agreement between
Broker and each of its Policyholder Seller customers, regarding any Policy
submitted by Broker to the Site.
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11.
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Broker
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇
shall be compensated with respect to any completed Life Settlement
Transaction involving a Policy that Broker has submitted to the Site
in an
amount determined
in its agreement with its Policyholder Seller customer. Broker shall
disclose to the applicable
Policyholder Seller in accordance with all applicable laws and regulations
and fiduciary
duties owed by Broker to such Policyholder Seller all compensated
paid or
payable to Broker
with respect to any completed Life Settlement Transaction involving
a
Policy that Broker
has submitted to the Site. Any compensation due to Broker for a completed
Life Settlement Transaction involving a Policy that Broker has submitted
to the Site shall be paid directly
from the Provider. Broker does hereby release, discharge, and hold
harmless Life-Exchange
and its affiliates and its shareholders, directors, officers, employees,
and agents, from
the payment of any commissions, fees or other compensation due to
Broker
as a result of any completed Life Settlement Transaction involving
a
Policy that Broker has submitted to the
Site.
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12.
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Life
Expectancy ▇▇▇▇▇▇▇.▇▇▇▇▇▇
shall be solely responsible for all costs associated with life
expectancy
reports ordered by Broker or its Authorized Users from LE Companies
through the Site
(the “LE
Reports”). Broker
acknowledges and agrees that Life-Exchange shall not be responsible
for (a) any of costs associated with such LE Reports; or (b) the
timeliness of delivery
of LE Reports by Registered Providers or LE Companies to Broker or
Registered Providers.
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13.
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Release
and ▇▇▇▇▇▇.▇▇▇▇▇▇
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. Broker acknowledges that because the Site is merely an online
venue
for others to conduct the negotiation
of Life Settlement Transactions, in the event Broker has a dispute
with
one or more
users of the Site, Broker 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. Broker 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 Broker is a resident
of
California, Broker 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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14.
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Breach
by Broker.Without
limiting any other remedies available to Life-Exchange, Life-Exchange
may limit Broker’s use of the Site, issue a warning, temporarily suspend,
indefinitely suspend or terminate Broker’s status as a Registered Broker
and Broker’s use of the Services and
the Site and refuse to provide access to E-Settlement Events to Broker
if:
(a) Broker breaches
any provision of this Agreement; (b) Life-Exchange is unable to verify
or
authenticate any
information provided by Broker to Life-Exchange or Registered Providers;
or (c) Life-Exchange
believes that Broker’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.
Broker shall at all times cooperate and comply with all requests
made by
Life-Exchange
for the purpose of verifying Broker’s compliance with the terms and
conditions of this Agreement and Life-Exchange may inspect and audit
Broker’s books and records from time to time for such purpose. Broker
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 Broker’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 (I) THE
ACCURACY,
RELIABILITY, ACCESSIBILITY, COMPLETENESS, OR TIMELINESS OF ANY
INFORMATION
SUPPLIED BY ANY REGISTERED PROVIDER OR REGISTERED BROKER, USER
OR
OTHER THIRD PARTY; (II) WHETHER BROKER SHOULD ENTER INTO TRANSACTIONS
WITH
ANY
REGISTERED PROVIDER AND THE ENFORCEABILITY OF ANY TRANSACTIONS OR
OBLIGATIONS; (III) THE ACCURACY OF POSTINGS MADE ON THE SITE BY ANY
REGISTERED PROVIDER, REGISTERED BROKER, LE COMPANY, USER OR ANY THIRD
PARTY; OR (IV) 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 Broker.
Broker may also have other legal rights that vary from state to
state.
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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 BROKER 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
Broker.
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18.
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Indemnity
by Broker of ▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇▇▇▇
covenants and agrees with Life-Exchange that it 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) incurred by any of the
Life-Exchange Indemnified
Parties that result from (a) any inaccuracy in or breach of any
representations or warranties
made by Broker or the Authorized Users in this Agreement, the schedules
attached hereto,
the Site Agreements or any other information furnished to the
Life-Exchange Indemnified
Parties by or on behalf of Broker or the Authorized Users; (b) any
nonfulfillment of any
covenant or agreement of Broker under this Agreement or the agreements
and
instruments
contemplated herein; (c) any violation by Broker or the Authorized
Users
of any law
or regulation or the rights of a third party; (d) any unauthorized
use of
Broker’s Life-Exchange Access Code; (e) any claims or litigation matters
which relate or are due to the conduct of Broker or the Authorized
Users;
(f) any claims made by a third party, including without
limitation, Registered Providers or Policyholder Sellers, alleging
facts
which, if true, would entitle the Life-Exchange Indemnified Parties
to
indemnification pursuant to (a) through (f) above; and (g) any fees
or
expenses (including, without limitation, reasonable attorneys’
fees)
incurred by the Life-Exchange Indemnified Parties in enforcing their
rights hereunder.
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19.
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Payment
of Fees. Broker
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
Broker Fees and Charges” on
the Site) accessible only to Registered Brokers.
The fees for the Services payable by Brokers to Life-Exchange are
set
forth in Schedule
Cattached
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 Brokers and any modifications to such fees
and
charges shall be automatically effective seventy-two (72) hours after
such
changes are posted on the Site. Brokers will be notified of changes
to the fees and charges only by electronic transmission of such changes
to
the Broker'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, Broker acknowledges that
it has
read and agrees to the then-current Registered Brokers Fees and
claims.
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No
Agency. No
agency, partnership, joint venture, employee-employer or franchiser-franchisee
relationship is intended or created by this
Agreement.
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21.
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Notices.Except
as explicitly stated otherwise, any notices required or permitted
to be
given hereunder
shall be given to Life-Exchange by contacting Life-Exchange as directed
on
the Site (see
“Contact Us” on Site) and to Broker at the email address provided by
Broker to Life-Exchange
during Broker’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 Broker’s office address
provided by Broker to
Life-Exchange during Broker’s registration process (for notice to Broker).
In such case, notice
shall be deemed given three (3) days after the date of its
mailing.
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22.
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Resolution
of Disputes.Each
party hereto irrevocably waives trial by jury in any action brought
hereunder.
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 5 or Section 10 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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23.
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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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24.
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Severability.If
any provision, clause or part of this Agreement or the application
thereof
is held
invalid, void or unenforceable, the remainder of this Agreement,
or the
application of such
provision, clause or part, shall not be affected thereby and will
continue
in full force and effect.
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Page
7 of
12
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25.
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Assignment.This
Agreement may be assigned by Life-Exchange at any time without the
approval
of Broker. Life-Exchange will provide notice to Broker of any such
assignment of this Agreement in accordance with the section of this
Agreement entitled
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26.
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“Notices.”
Broker
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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27.
|
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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28.
|
No
Waiver. Life-Exchange’s
failure to act with respect to a breach by Broker 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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29.
|
Entire
Agreement; Modifications.This
Agreement (which includes the Site Agreements) sets forth
the entire understanding and agreement between Broker and Life-Exchange
with respect
to the subject matter hereof. Life-Exchange may modify this Agreement
by
giving prior notice
of such changes to Broker and those changes shall be effective as
to
Broker’s participation
in subsequent E-Settlement Events.
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30.
|
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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31.
|
Broker
Representations and ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇
hereby represents and warrants to Life-Exchange
that (a) it is appropriately licensed in no less than three (3) States
as
a viatical or life
settlement broker as required under all applicable laws and regulations;
(b) it has all requisite
rights and authority to enter into this Agreement and to grant all
applicable rights; (c) the
performance of this Agreement shall not violate, conflict with, or
result
in a material default
under any other agreement, including confidentiality agreements between
Broker and third
parties; (d) any application and other information submitted to
Life-Exchange by Broker is
true, accurate and correct; (e) Broker is not subject to the Fair
Credit
Reporting Act, 15 U.S.C. § 1681 et
seq., (f)
any Broker Content provided to Life-Exchange for the Site: (i) shall
not
infringe or misappropriate any third party's copyright, patent, trademark,
trade secret or other intellectual property right or proprietary
rights of
any third party; and (ii) shall not violate any law, statute, ordinance
or
regulation (including, without limitation, those governing export
control,
unfair competition, anti-discrimination or false advertising); and
(g) it
has valid errors &
omissions insurance coverage insuring liability arising from Life
Settlement Transactions.
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32.
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Survival
of Certain Sections. The
Sections entitled “Confidentiality
and Privacy Obligations,” “Reservation
of Rights,” “Non-Circumvent,” “Release and
Waiver,”“Limitation on Life-Exchange’s
Liability,” “Indemnity
by
Broker of Life-Exchange,” “Resolution of Disputes,”
and
“Governing
Law and Jurisdiction” shall
survive any termination or expiration of this Agreement.
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(Signature
page follows. Remainder of page left intentionally blank.)
Page
8 of
12
BROKER:
As
an
officer or other authorized representative of Broker, I am authorized to execute
this Agreement on
Broker’s behalf.
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Name
of Broker:
Signature:
Name:
Title:
Date:
Address:
|
________________________________
________________________________
________________________________
________________________________
________________________, 200_____
________________________________
________________________________
________________________________
|
ACCEPTED
BY LIFE-EXCHANGE:
Life-Exchange,
Inc.
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Signature:
Name:
Title:
Date:
Address:
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________________________________
________________________________
________________________________
________________________, 200_____
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Page
9 of
12
SCHEDULE
A
List
of Authorized Broker Users
1.______________________________________________
2.______________________________________________
3.______________________________________________
4.______________________________________________
5.______________________________________________
6.______________________________________________
7.______________________________________________
8.______________________________________________
9.______________________________________________
10._____________________________________________
11._____________________________________________
12._____________________________________________
13._____________________________________________
14.______________________________________________
15.______________________________________________
Page
10 of
12
SCHEDULE
B
Agreement
for Policyholder Seller’s Exclusivity to Broker
Exclusivity
Rights of Broker.Customer
hereby instructs, and the Broker is hereby complying with Customer’s
instructions, agrees and consents to, Broker’s submission of the Policy to the
web site located
at ▇▇▇.▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ (the
“Site”), an on-line marketplace operated by Life-Exchange, Inc., that provides a
venue for life settlement brokers to (1) market, on behalf of their respective
customers who
own
and seek to sell in-force non-variable life insurance policies in life
settlement transactions, such
life
insurance policies for sale to registered life settlement providers of the
Site(“Registered
Providers”) and
(2)
receive from Registered Providers indications of interest to purchase such
life
insurance
policies. During the Exclusivity Period (as defined below), Customer agrees
that
Customer shall
not, directly or indirectly, sell to, offer to sell the Policy to, solicit
any
offers to purchase the Policy from, or enter into a life settlement transaction
involving the Policy with, (a) any of the parties listed on the
Site
as Registered Providers, except pursuant to a transaction with a Registered
Provider resulting from
a
submission of the Policy to the Site for which such Registered Provider submits
to the Site the highest price for an indication of interest to purchase the
Policy, (b) any of the affiliates of any of the parties listed on the Site
as
Registered Providers or (c) any other person or entity. “Exclusivity
Period”means
period commencing on the first date on which Broker submits the Policy to the
Site and ending on
the
one (1) year period following the date on which the Policy is removed or
withdrawn from the Site.
Customer acknowledges and agrees that Broker’s submission of the Policy to the
Site and the terms
hereof are in the best interests of the Customer.
Page
11 of
12
SCHEDULE
C
Life-Exchange’s
Fees
Maintenance
Fees:
Broker
shall pay to Life-Exchange an annual maintenance fee of $5,000.00 due upon
execution of this Broker
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.
Listing
Fees:
A
listing
fee of $150 will be charged to the Broker for each registered policy submitted
to auction on Life-Exchange.
Listing fees shall be due and payable by the Broker to Life-Exchange no later
than thirty (30)
days
after the date of a Policy being submitted to auction by the
Broker.
Page
12
of 12