The parties to this COMPASS CONFIDENTIALITY AGREEMENT (“Agreement”) are The American Equity Underwriters, Inc. (“AEU”) and the legal entity to which access to Compass is being provided (“COMPANY”).
AEU provides certain data for ALMA Members and certain policyholders for policies underwritten by AEU for specific carriers. ALMA and these carriers are jointly referred to as “AEU Carriers.” AEU utilizes “Compass,” a customer portal. AEU will provide COMPANY with access to Compass in order for COMPANY to monitor data (the “Identified Purposes”). COMPANY understands that all information accessible through Compass (the “System”) is considered “Confidential and Proprietary Information.”
COMPANY agrees that it will not, unless required by law, disclose or provide access to any Confidential and Proprietary Information to any third parties, and will use such information only for the Identified Purposes. COMPANY agrees and accepts responsibility for any breach of this Agreement by its employees and shall be liable for any such breach. COMPANY will not permit access to the System other than authorized employees of COMPANY. AEU will provide unique passwords for access to the System (the “Passwords”) to authorized employees. COMPANY agrees that when an employee (who has a password to the System) leaves COMPANY for any reason and/or no longer needs access, COMPANY will notify AEU promptly that the employee's password needs to be deactivated.
COMPANY agrees to indemnify, hold harmless, and defend AEU, The American Equity Underwriters Management, Ltd. (“AEU M”), AEU Carriers and their parents, subsidiaries, related companies, and affiliates and each of their directors, employees, officers and subcontractors, together with their successors and assigns from any and all liabilities, damages, losses, judgments, fines, claims, suits, penalties, expenses, fees, costs, amounts paid in settlement, including attorneys’ fees and disbursements in connection with investigating, defending, enforcing and/or settling any action or threatened action arising or resulting from the breach of the terms of this Agreement by COMPANY and/or its employees, COMPANY’s use of the System, COMPANY’s violation or alleged violation of any rights of another, or COMPANY’S use or disclosure of Confidential and Proprietary Information. COMPANY shall maintain reasonable insurance coverage for such liabilities until COMPANY has no further obligations (including potential obligations) arising out of this Agreement. COMPANY further agrees not to sue for any claims of any kind or nature arising out of or related to its use of the System.
The parties agree that AEU may terminate this Agreement at any time, and in such event, COMPANY agrees to maintain confidentiality of any Confidential and Proprietary Information in the possession of COMPANY, and shall return any such information to AEU within ten (10) business days of termination. Under no circumstances, including the termination of this Agreement, will AEU be responsible for any costs, expenses, damages, or liabilities incurred by COMPANY or on COMPANY’S behalf arising out of or related to this Agreement.
AEU DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SYSTEM IS DONE AT COMPANY’S OWN DISCRETION AND RISK, AND COMPANY IS SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL, INCLUDING DAMAGES RESULTING FROM COMPUTER VIRUSES OR ANY COMPUTER RELATED PROBLEM OR ISSUE. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, AEU, AEU M, AEU CARRIERS, AND THEIR PARENTS, SUBSIDIARIES, RELATED COMPANIES, AND AFFILIATES AND EACH OF THEIR DIRECTORS, EMPLOYEES, OFFICERS AND SUBCONTRACTORS, SHALL NOT IN ANY EVENT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, OR OTHER DAMAGE ARISING OUT OF OUR RELATED IN ANY MANNER TO THE SYSTEM.
This Agreement confers rights and remedies upon AEU Carriers and AEU M as intended third-party beneficiaries under the terms of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions herein shall continue in full force and effect.
This Agreement shall be governed by and construed in accordance with the laws of the State of Alabama, and the parties agree that any actions or suits of any kind or nature in connection with or related to this Agreement shall be brought exclusively in the United States District Court for the Southern District of Alabama, unless such court declines or refuses to exercise jurisdiction, in which case the jurisdiction and venue of any such suits or actions shall be exclusively in the appropriate District Court or Circuit Court of Mobile County, Alabama.
Notwithstanding anything contained herein, nothing in this Agreement is intended to change or alter any of the terms of the ALMA Members Certificate, Coverage Agreement, or Bye-Laws (the “ALMA Documents”), or any other coverage agreements or policies. To the extent that any of the provisions contained herein conflict with the ALMA Documents, including with regard to dispute resolution, governing law, jurisdiction, or venue, the terms of the ALMA Documents will govern.
AEU’s acceptance of the terms of this Agreement shall be demonstrated by AEU providing COMPANY with access to the System. COMPANY’S acceptance of the terms of this Agreement shall be evidenced via electronic acknowledgement and acceptance. The individual(s) accepting the terms contained herein certify they are duly authorized to enter into this Agreement.