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THE AGREEMENT DETAILED BELOW GOVERNS THE TERMS AND CONDITIONS OF YOUR SERVICES AS A CONTRACTING, LICENSED, INDEPENDENT PRODUCER ('Producer') FOR ASSOCIATION CONCEPTS, LLC dba AGILITY INSURANCE SERVICES ('Agility'). IF YOU AGREE TO THE TERMS AND CONDITIONS, ENTER YOUR ELECTRONIC SIGNATURE EXACTLY AS YOUR NAME APPEARS ON YOUR RESIDENT STATE INSURANCE LICENSE.
EFFECTIVE DATE OF AGREEMENT: 2/19/2018
A. Duties and Authority of Producer
1) Producer shall solicit applications from groups and individuals for insurance products. Producer will have the opportunity to select from several insurance products to sell after executing this Agreement. Those products and their respective commission schedules may be attached to and incorporated into this Agreement. Producer's authority under this Agreement is non-exclusive. Producer is an independent contractor of Agility, and nothing herein shall be construed as creating a relationship of employer-employee, partner, joint venturer, officer or Agility agent in any manner for any other purpose, other than as specifically provided in this Agreement.
2) Producer will provide customer service for his or her client as a result of applications submitted by Producer (hereinafter referred to as "Customer" or "Customers"). Producer must follow and understand all enrollment and payment procedures promulgated by insurers of the insurance products (hereinafter referred to as "Insurer" or "Insurers") for which Producer submits business. Service provided by Producer will include, but not be limited to: a) Acting as liaison between the Customer and Insurers; b) Maintaining a working and current knowledge of and ability to explain the insurance products; c) Assisting in the enrollment process for all Customers by all available means to collect Customer applications; d) Ensuring that all Insurer agreements required for the implementation of the insurance products purchased by Customers have been executed; e) Verifying that fulfillment materials and policies/certificates have been received by Customers after sale of the insurance products; f) Providing sales and customer support to Customers in a timely and satisfactory manner; and g) Any other services necessary to fulfill the terms of this Agreement. All services identified as items a) through g) above are considered material obligations of Producer, and Producer's failure to provide such services shall be considered a material breach of this Agreement.
3) Producer agrees to secure and maintain the licenses that are necessary to transact business as a Producer on behalf of Insurers and as required by any state or jurisdiction where Producer solicits insurance sales. Producer must provide Agility copies of all required licenses and notify Agility immediately of any expiration, termination, suspension or other action by a governmental agency affecting Producer's license(s). Producer agrees to notify Agility in writing immediately upon receiving notice of any misdemeanor (excluding minor traffic offenses) or felony charges or any actions including, but not limited to, convictions by any governmental authority for commission of any act involving fraud, dishonesty, breach of trust, theft, misappropriation of money or breach of any fiduciary duty.
4) Producer agrees to comply with all Agility rules, regulations and policies which may be included in Producer's administrative back office website and as may be amended from time to time.
5) Producer must use best efforts and practices to ensure that each application is fully and truthfully completed by the applicant. Producer must inform the applicant that in no event will the applicant have any coverage through an Insurer unless and until the application is reviewed and approved by the Insurer and a policy or certificate is issued. Under no circumstances may Producer recommend that a Customer cancel any existing coverage until the application is reviewed and approved by the replacement Insurer.
6) Producer is an independent contractor and has no claim to compensation except as provided in this Agreement or its addenda and Producer is not entitled to reimbursement from Agility for any expenses incurred in performing this Agreement. Producer agrees that to the extent of any indebtedness to Agility from Producer, Agility shall have a first lien against any commissions due Producer, and such indebtedness may be deducted at Agility's option from any commissions due Producer. This Agreement does not give Producer any power of authority other than as expressly granted and no other or greater power may be implied from the grant or denial of powers specifically mentioned herein.
7) Producer will treat as trade secrets any and all information concerning Agility or its business, products, techniques, methods, systems, price-books, rating tools, plans or policies; and Producer will not, during the term of this Agreement or at any time thereafter, disclose such information, in whole or in part, to any person, firm or corporation for any reason or purpose whatsoever, or use such information in any way or in any capacity other than as an Agility agent in furtherance of Agility's interests. With respect to information concerning Agility's Customers, Producer will implement a comprehensive written information security program that includes administrative, technical and physical safeguards for the protection of such information that are appropriate to Producer's size, complexity, nature and scope of activities and that is designed to a) Ensure the integrity and confidentiality of such information; b) Protect against any anticipated threats or hazards to the security or integrity of such information; and c) Protect against unauthorized access to, or use of, such information that could result in substantial harm or inconvenience to any Customer.
Upon termination of this Agreement, or sooner if requested by Agility, Producer will immediately deliver to Agility any and all literature, documents, data, information, order forms, memoranda, correspondence, Customer and prospective Customer lists (obtained from Agility), Customer orders, records, cards or notes acquired, compiled or coming into Producer's knowledge, possession, custody or control in connection with his/her activities as Producer or Agility sales representative, as well as all machines, parts, equipment, rating tools and other materials received by Producer from Agility or from any of its Customers, Producers or suppliers in connection with such activities.
8) With respect to information concerning Customers, Producer agrees to a) Ensure that any agent, including a subcontractor, to whom it provides any such information received from, or created or received by Producer, agrees to the same restrictions and conditions that apply through this Agreement to Producer with respect to such information; and b) In no event, without Agility's prior written approval, provide such information to any employee of Producer, including a subcontractor, if such employee, Producer or subcontractor receives, processes, or otherwise has access to such information outside of the United States.
B. Commissions and Rights Reserved to Agility
1) Commissions. Agility will pay Producer commissions on the contracts produced by Producer in accordance with the terms set forth in product commission schedules for each product Producer selects to offer through Agility. Each commission schedule executed by the Producer and Agility shall become part of this agreement. Subject to Paragraphs 3 and 4 below, commissions shall be payable to Producer by Agility for as long as commissions are collected from Insurers for the insurance products sold by Producer.
2) Commission Assignment Rights. Producer may, with Agility's prior written consent, assign commissions payable with respect to policies sold by Producer under this Agreement, subject to the following conditions: a) The assignment must be in writing, in a form acceptable to Agility and irrevocable, and will be honored only when the assignee certifies that: (i) the assignor is a true employee of the assignee (or that the assignor is a partner of the assignee if the assignee is a partnership); (ii) the assignor is required to assign all commissions to the assignee as a condition of employment; and (iii) because of such relationship, it is appropriate for Agility to report such commissions for tax purposes as income to the assignee. b) The terms of the assignment must be determined by Agility not to prejudice Agility's interests; and c) This Agreement is in force and in good standing at the time of assignment. Any purported assignment or transfer of any interest in Producer's commissions other than in strict compliance with this Paragraph 2 shall be void as to Agility.
3) Rights to Commissions on Termination. Unless Agility terminates this Agreement for cause under Paragraph 3 of Section C, commissions are vested and payable after termination of this Agreement until the earlier of a) three years from the date of termination of this Agreement, or b) the date on which the monthly compensation amount due is less than $50.
4) Loss of Commissions. a) No further commissions shall be payable to Producer should Agility terminate this Agreement for cause pursuant to Paragraph 3 of Section C. b) If Producer is receiving commissions pursuant to post termination rights under Paragraph 3 of Section B, no further commissions shall be payable to Producer if (i) Producer shall at any time be indebted to Agility for more than sixty (60) days; (ii) Producer purports to act, or represents that Producer is entitled to act in any way on behalf of Agility; (iii) Producer commits any act of fraud or dishonesty or breaches any fiduciary duty or does anything which would have been a material default or substantive breach during the period this Agreement remained in effect; or (iv) Producer fails to notify Agility of any change in Producer's address within one (1) year of such change.
5) In instances in which Insurers do not pay commissions to Producer directly, Agility will pay compensation due to Producer under this Agreement within thirty (30) days after funds are actually received and recorded by Agility from Insurers. Agility reserves the right to accumulate commissions until commissions due Producer equal at least $100.00. If a debit is owed by Producer on business generated by Producer, Agility has the right to charge back to Producer, or set-off against future commissions due Producer, the amount of commission previously paid to Producer on the amount of said debit. Where there is a General Agent with financial responsibility for compensating Producer for the sale of any insurance products, Producer agrees to look solely to such General Agent for compensation and shall not hold Agility responsible for the payment of commissions.
6) Licensing and Appointment Fees. Producer is responsible for all costs associated with state insurance licensing and appointment fees incurred by Insurers. In the event that appointment fees are not collected in advance of appointment by an Insurer and not paid by Insurer on behalf of Producer, such appointment fees shall be debited from Producer by Agility from commissions owed to Producer.
7) Errors and Omissions Insurance. Producer shall maintain errors and omissions liability insurance at Producer's sole expense for as long as the Agreement remains in effect and during any action involving or related to the Producer's representation of Insurers that occurred before the Agreement is terminated. The errors and omissions liability insurance policy must be issued in Producer's name or as an additionally named insured with a minimum requirement of $1,000,000 per occurrence. Producer shall submit evidence of errors and omissions coverage to Agility upon execution of this Agreement and immediately upon any change or replacement of coverage.
C. Term and Termination
1) This Agreement shall be effective for an initial term of one (1) year from the Effective Date, and thereafter shall automatically renew for an additional term of one (1) year each, unless and until terminated in accordance with the provisions of this Agreement.
2) This Agreement may be terminated without cause with sixty (60) days written notice by either party in a writing executed by a duly authorized representative of the terminating party.
3) Agility may terminate this Agreement immediately upon written notice to Producer at any time upon material default or substantive breach by Producer of one or more of its obligations under this Agreement (including any amendments), Producer's commission of fraud, dishonesty, breach of trust, theft, misappropriation of money, or breach of any fiduciary duty, or Producer's violation of Agility's rules, regulations and policies as may be amended from time to time. Producer's failure to comply with any provision of this Agreement shall be material if Agility determines that such failure affects Producer's ability to perform under this Agreement. Termination for cause shall not be Agility's exclusive remedy, but shall be cumulative with all other remedies available at law or in equity. A failure to terminate this Agreement for cause shall not be a waiver of the right to do so with respect to any past, current or future default.
4) This Agreement will automatically terminate (i) upon the death of Producer, if Producer is an individual, or (ii) upon the dissolution of the corporation or partnership, if Producer is a corporation or partnership.
5) Except as provided in Paragraph 3 of Section B, all commission payments to Producer under this Agreement shall cease upon termination of this Agreement.
D. Use of Agility Websites
1) Trademarks. Agility's websites contain many trademarks, trade names, service marks, copyrights and/or Agility logos and may also contain several protected marks of Agility's numerous affiliates. Such marks remain the property of their respective owners. Producer recognizes and acknowledges the ownership of these marks and understands that it does not acquire, through use of this web site, any right, title, or interest in the marks. Producer agrees that it will not change, modify and or exploit the marks, nor participate in any activity which modifies and or exploits such marks. All rights to these marks are reserved. Any use of the marks without expressed written authorization is strictly prohibited.
2) Prohibited Use. Any use of Agility's websites for an illegal or objectionable purpose is strictly prohibited. Producer agrees that it will not use this web site to engage in any activity that could be deemed illegal, harmful to others, or give rise to civil liability. Such activities include, but are not limited to: (i) activities involving the transmission of unlawful, threatening, harassing, obscene, sexually explicit, pornographic, hateful, profane, libelous, or defamatory information; (ii) activities involving the transmission of junk mail or spamming; (iii) activities involving the promotion or use of viruses; (iv) activities that violate any law, regulation or statute; and or (v) activities that infringe upon any legally protected property right, etc. By using this site, user agrees that any and all information transmitted to or with the use of this site cannot and shall not be deemed confidential or proprietary. Agility reserves the right to monitor transmissions and investigate any alleged prohibited use of this web site and to disclose any and all information relating to such prohibited use. Agility, its officers, directors, affiliates, employees, agents, partners, subsidiaries and or contractors shall not assume, and expressly disclaims, any and all liability relating to an individual's illegal or prohibited use of this web site. Any violation of this or any other section contained herein may result in termination of service and or any other action Agility determines appropriate under the circumstances.
3) Third Party Relationships. Agility's websites may contain several links to other sites. These links are provided merely to assist the Producer and Clients. These sites are independent of Agility's site and Agility does not and cannot control the content and or representations of such sites. The information presented on these links may not necessarily reflect those beliefs held by Agility. The inclusion of a link does not mean that Agility accepts or endorses any of the content contained in such site. Producer is responsible to protect himself/herself while associating with the linked site. Agility and it's officers, directors, affiliates, employees, agents, partners, contractors and subsidiaries disclaim any and all responsibility or liability for content contained on such linked sites and will not be held accountable for any damages, of any kind, incurred by those who visit such sites.
4) Personally Identifiable Information. For purposes of this section, Personally Identifiable Information (PII) means information which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc., alone, or when combined with other personal or identifying information that is linked or linkable to a specific individual, such as date and place of birth, mother's maiden name, etc.
When you submit an application on Agility's website(s), you authorize Agility to create, collect, disclose, access, maintain, store and use Personally Identifiable Information (PII) for the following functions:
5) Modifications. Agility's websites may contain typographical errors or technical inaccuracies. Agility reserves the right to modify the content of its websites at any time without prior notice.
6) Warranties and Limitation of Liability. AGILITY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL Agility BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATING TO OR ARISING FROM THIS WEB SITE WHETHER OR NOT EITHER PARTY HAD OR SHOULD HAVE HAD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED.
7) Force Majeure. Notwithstanding any other provision set forth in these terms and conditions, Agility shall not be liable for any failure or delay in its performance due to any cause beyond Agility's reasonable control, including, without limitation, any act of war or civil insurrection, national emergencies, acts of God, fire, explosion, vandalism, storm, earthquake, flood, embargo, riot, sabotage, industry-wide strikes, lockouts, work stoppages or other labor difficulties, industry-wide supplier failures, unavailability of materials, rights of way or governmental acts; provided, however, that Agility shall use its commercially reasonable efforts to correct promptly such failure or delay in performance to the extent consistent with then applicable law and regulatory requirements and appropriate in light of then existing circumstances.
E. Settlement of Disputes
1) Producer shall indemnify, defend and hold Agility harmless from and against any loss, damage or expense, including reasonable attorneys' fees, caused by or arising from the negligence, misconduct or breach of this Agreement by Producer, including Agility's rules, regulations and policies, from the failure of Producer to comply with any federal or state laws, rules or regulations, or from the use of Agility's websites to complete enrollments for Producer's Customers.
2) Producer shall cooperate fully with Agility in any investigation or proceeding of any regulatory or governmental body, or court of competent jurisdiction, including, where required by law, making its books and records available to such entities for inspection, if it is determined by Agility that the investigation or proceeding affects matters covered by, related to, or arising out of this Agreement.
3) Producer shall defend any act or alleged act of Producer or its employees at its own expense. Producer shall reimburse Agility for all costs, expenses or legal fees that Agility incurs for the defense of any administrative action in which Agility or Producer is named and which is determined by a court of competent jurisdiction or by an appointed arbitrator to be the consequence of any unauthorized act of Producer.
4) Mediation and Arbitration. If a dispute arises between the parties in connection with this Agreement, Agility and Producer agree to first submit the dispute to mediation and, if not resolved, to binding arbitration as described below. The provisions of this Article shall also apply to disputes, as described herein, between Agility and Producer and its assigns. a) Mediation. Venue for the mediation shall be Dallas County, Texas and the mediation shall be conducted in Dallas County, Texas by a mediator chosen from names of mediators furnished by the Association of Attorney-Mediators ("AAM"). If the parties cannot agree on a mediator, they will ask AAM to select a mediator not previously chosen by either, and such request will be made by both parties after either party, having attempted to agree with the other party regarding the selection of a mediator, determines that agreement cannot be obtained in the selection of a mediator. The mediation will be non-binding and will be conducted under the rules of mediation then in effect in the District Courts of Dallas County, Texas, and each party will pay one-half of the mediator's fees. Each party will bear its own costs. Parties attending and participating in the mediation shall have the authority to settle the dispute. b) Arbitration. If the mediation does not result in a settlement, the parties agree that the matter shall be settled by binding arbitration in Dallas, Dallas County, Texas, administered by the American Arbitration Association ("AAA") and conducted by a sole arbitrator in accordance with the AAA's Commercial Arbitration Rules ("Rules"). The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16, to the exclusion of state laws inconsistent therewith or that would produce a different result, and judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. Except as may be required by law or to the extent necessary in connection with a judicial challenge, or enforcement of an award, neither a party nor the arbitrator may disclose the existence, content, record or results of an arbitration. Fourteen (14) calendar days before the hearing, the parties will exchange and provide to the arbitrator (a) a list of witnesses they intend to call (including any experts) with a short description of the anticipated direct testimony of each witness and an estimate of the length thereof, and (b) pre-marked copies of all exhibits they intend to use at the hearing. Depositions for discovery purposes shall not be permitted. The arbitrator may award only monetary relief and is not empowered to award damages other than compensatory damages. Nothing in this section eliminates either party's right to terminate this Agreement pursuant to any other provisions in the Agreement.
F. General Terms
1) Agility and Producer shall comply with all applicable state and federal laws and regulations applicable to their businesses, their licenses and the transactions into which they enter, including but not limited to the Federal Communications Commission final rule amending the Telephone Consumer Protection Act, where Producer engages in outbound telemarketing solicitation.
2) Producer shall act in Agility's best interest and of providers of the Product Offerings. Producer shall not permit other interests, activities or responsibilities to interfere with Producer's faithful performance under this Agreement.
3) Except as specifically provided in Paragraph 2 of Section B, neither this Agreement nor the right to receive money hereunder may be assigned without Agility's prior written consent, and any assignment made contrary to this provision shall be void as to Agility; provided, however, Agility may assign, delegate or transfer this Agreement in whole or in part to any affiliate, now or in the future, or to any entity which succeeds to the applicable portion of its business through a sale, merger or other transaction, provided that such other entity assumes Agility's obligations hereunder. This Agreement is personal to Producer, and Producer's duties hereunder shall not be delegated or subcontracted by Producer.
4) Any notice required from Agility under this Agreement shall be deemed given on the day such notice is deposited in the United States mail with first class postage pre-paid and addressed to Producer at the address of the Producer appearing on Agility's records. Any notice required from Producer shall be deemed given on the day such notice is deposited in the United States mail with first class postage pre-paid and addressed to Agility.
5) This Agreement (including any amendments, attachments, addenda or schedules) is the complete and sole contract between the parties regarding the distribution of Product Offerings by Producer subsequent to the Effective Date of this Agreement and supersedes any and all prior understandings or agreements between the parties whether oral or in writing on this subject matter.
6) In this Agreement, the words "shall" and "will" are used in the mandatory sense. Unless the context otherwise clearly requires, any one gender includes all others, the singular includes the plural, and the plural includes the singular.
7) The fact that Agility may not have insisted upon strict compliance with this Agreement with respect to an act or transaction of Producer shall not relieve Producer from the obligation to perform strictly in accordance with the terms of this Agreement.
8) Producer covenants and agrees that during the term of this Agreement with Agility and for twelve (12) months after the termination thereof, regardless of the reason for the termination, Producer will not, directly or indirectly, on Producer's own behalf or on behalf of or in conjunction with any person or legal entity, recruit, solicit, or induce, or attempt to recruit, solicit, or induce, any Agility employee to terminate their employment relationship with Agility.
9) This Agreement shall be governed by the laws of the State of Texas.
10) Agility's liability, if any, for damages to Producer for any cause whatsoever arising out of or related to this Agreement, and regardless of the form of the action, shall be limited to Producer's actual damages. Agility shall not be liable for any indirect, incidental, punitive, exemplary, special or consequential damages of any kind whatsoever sustained as a result of a breach of this Agreement or any action, inaction or alleged tortuous conduct or delay by Agility.
11) In addition to those provisions which by their terms survive expiration or termination of this Agreement, Paragraphs 6, 7 and 8 of Section A, Paragraphs 3 and 4 of Section B, Paragraph 6 of Section D, Section E, and Paragraphs 3, 9, 10 and 13 of Section F shall survive expiration or termination of this Agreement, regardless of the cause giving rise thereto.
12) Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.
13) Agility may modify this Agreement upon thirty (30) days prior written notice to Producer. Notwithstanding the foregoing, upon the enactment of any law or regulation, or any order or direction of any governmental agency affecting this Agreement, Agility may, by written notice to Producer, amend the Agreement in such manner as Agility determines necessary to comply with such law or regulation, or any order or directive of any governmental agency. Agility may provide written notice pursuant to this paragraph by letter, newsletter, electronic mail or other media.
G. Opt-In to Communications from Agility
Producer opts-in and expressly authorizes Agility to communicate with Producer by means of telephone, email and text messaging if a mobile device is listed in Producer's profile. For text messaging, message and data rates may apply. Agility will send Producer text notifications regarding upcoming events in Producer's area, contracting & carrier opportunities, and notices of commission statements posted. Producer may receive up to 5 messages per month.
These communications settings may be changed at any time through Producer's administrative website provided by Agility or by contacting Agility directly.
Producer has read and fully understands the terms and conditions of this Agreement (the "Agreement"), and its attachments, if any. By signing this Agreement, Producer certifies that Producer has not been convicted of any criminal felony involving dishonesty or breach of trust or been convicted of an offense under Section 1033 of the Violent Crime Control and Law Enforcement Act of 1994. Producer further agrees to immediately inform Agility of any conviction of the types described in the preceding sentence.
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