This Distributor Agreement (“Agreement”) is entered into by and between Eventual Services LLC, a Delaware limited liability company (“Eventual”), and the undersigned Distributor (“Distributor”), each a “Party.” It is effective on the earliest of the date on which Distributor signs it, accepts it electronically, or first accesses the Platform after it has been made available to Distributor (the “Effective Date”).
1.1 Defined Terms. In this Agreement, “including” means including without limitation, and where Eventual may exercise discretion or give approval, it may act in its sole discretion.
“Backing Provider” means any insurer, lender, investor or other person that insures, finances or otherwise supports Eventual’s obligations or business.
“Compensation” and “Compensation Schedule” have the meanings given in Section 5.1, and “Term” has the meaning given in Section 11.1.
“Customer” means any person who enrolls in Premium Lock. “Prospect” means any other person to whom Premium Lock is or may be marketed, or whose information is made available to Eventual under this Agreement, including any client of a Distributor Party.
“Customer Terms” means Eventual’s Terms of Service (available at eventualclimate.com/terms-of-service), Privacy Policy and Cookie Notice, and any other terms or authorizations that Eventual requires a Prospect or Customer to accept, as amended from time to time.
“De-identified Data” means Policy Data from which the names, telephone numbers and email addresses of individuals have been removed.
“Derived Data” means all models, algorithms, predictions, analytics, reports and other outputs that are created, trained or derived from or with the use of Policy Data or any other data.
“Eventual Data” means (a) all data and records generated or collected by or through the Platform, or by or for Eventual, in connection with Premium Lock, including price quotes, predictions, and enrollment, billing, payout and usage records; (b) all Derived Data, De-identified Data and aggregated data; and (c) the Eventual Copies (defined in Section 6.3).
“Fee” means any amount that Eventual charges a Customer for Premium Lock.
“Marketing Materials” means all advertising, sales, training and customer-facing content relating to Premium Lock or Eventual, in any medium.
“Platform” means Eventual’s software platform, portal, websites, application programming interfaces and integrations.
“Policy Data” means all data, documents and information relating to any insurance policy, quote, renewal, premium, coverage, claim history, insurer, insured or insured property, and all related information about any Prospect or Customer, that is made available to, or received, retrieved, accessed or viewed by, Eventual or its affiliates or service providers in connection with this Agreement or Premium Lock, from any source. It includes declarations pages, renewal offers, books of business and policy download files, and all data extracted from them.
“Premium Lock” means Eventual’s Premium Prediction Service, which includes an accuracy guarantee, as described in the Customer Terms, in each version that Eventual makes available through the Platform, and any other product or service that Eventual designates in the Platform for marketing under this Agreement.
“Distributor Parties” means Distributor, its affiliates and Sub-Distributors, and their respective owners, employees, contractors and representatives.
“Program Rules” means the rules, guidelines, disclosures and instructions that Eventual publishes in the Platform or communicates to Distributor, as changed from time to time, which are part of this Agreement.
“Sub-Distributor” means any agency or other person, other than an employee of Distributor, that accesses the Platform or markets Premium Lock through or by arrangement with Distributor, including any agency that is a member of, or has a contractual relationship with, an agency network operated by Distributor and that obtains access to Premium Lock through that relationship, whether or not Distributor owns or controls it.
2.1 Authorization. Eventual authorizes Distributor, on a non-exclusive, non-transferable and revocable basis, to market Premium Lock to Prospects in the jurisdictions that Eventual designates, to assist Prospects in obtaining price quotes and enrolling through the Platform, and to provide the customer service that the Program Rules permit, in each case only as this Agreement and the Program Rules allow.
2.2 Relationship of the Parties. Distributor is an independent contractor. Nothing in this Agreement creates an employment, partnership, joint venture, franchise or agency relationship. Distributor has no authority to bind Eventual, or to make any commitment or accept any notice on its behalf, and notice to a Distributor Party is not notice to Eventual. Distributor is responsible for the acts and omissions of the Distributor Parties as if they were its own.
2.3 Nature of Premium Lock. The Parties acknowledge and intend that Premium Lock is a Premium Prediction Service, which includes an accuracy guarantee, and is not an insurance policy or a financial derivative. Eventual makes no representation or warranty as to how any regulator, court or other governmental body (a “Governmental Authority”) characterizes or will characterize Premium Lock or Distributor’s activities.
2.4 Distributor’s Insurance Business. This Agreement does not authorize or govern the sale of insurance. Distributor conducts any insurance business independently and is solely responsible for it, including all insurance advice. Eventual is not a party to any insurance policy or placement and provides no insurance advice. Nothing in this Section limits Eventual’s rights in Policy Data.
2.5 Reserved Rights. Eventual may at any time, in its discretion and without liability to Distributor: (a) accept or decline any enrollment; (b) determine the Fee, eligibility and terms of Premium Lock; (c) limit, pause, modify or discontinue Premium Lock or the Platform, or their availability by jurisdiction, insurer, Distributor or any other criteria; and (d) market and sell Premium Lock directly or through others, including to clients of the Distributor Parties. Eventual makes no commitment as to volume, availability or exclusivity.
2.6 Platform and Support. Eventual shall provide Distributor with access to the Platform, subject to Distributor’s compliance with this Agreement and to Eventual’s rights under it, and may provide Marketing Materials, support and training at its discretion and without warranty. Eventual has no other obligation to Distributor except as this Agreement expressly states.
3.1 Joinder. Distributor shall not give any Sub-Distributor access to the Platform, or permit it to market Premium Lock, unless Eventual has approved the Sub-Distributor and the Sub-Distributor has accepted this Agreement, or other terms that Eventual requires, by signature or electronic acceptance. Upon acceptance, the Sub-Distributor is bound by this Agreement as a Distributor with respect to its own activities. Distributor’s acceptance of this Agreement also binds each Sub-Distributor that Distributor owns or controls; every other Sub-Distributor, including each member agency of Distributor’s network, is bound by its own acceptance. Eventual may refuse, suspend or terminate any Sub-Distributor at any time.
3.2 Responsibility and Direct Dealings. Distributor shall cause each Sub-Distributor to comply with this Agreement, shall keep a current roster of its Sub-Distributors and their users and provide it on request, and is responsible for all amounts that a Sub-Distributor owes to Eventual. Eventual may pay Compensation to Distributor or directly to the Sub-Distributor, and either payment discharges Eventual in full. Eventual may contract and deal directly with any current or former Sub-Distributor at any time, including after this Agreement ends, and Distributor waives any claim that this interferes with its rights.
4.1 Compliance. Distributor shall comply, and shall ensure that each Distributor Party complies, with applicable law, this Agreement and the Program Rules. Distributor shall accurately describe Premium Lock as a Premium Prediction Service, which includes an accuracy guarantee, provided by Eventual. Distributor shall complete any training or compliance certification that Eventual requires, and shall maintain errors and omissions insurance that covers its activities under this Agreement, and cyber liability insurance, each with limits of at least $1,000,000.
4.2 Limitations. Distributor shall not, and shall ensure that no Distributor Party does: (a) represent Premium Lock as insurance, coverage, an endorsement or a financial derivative, or describe the Fee as an insurance premium; (b) alter or waive any term of Premium Lock, or promise any payout or eligibility decision; (c) make any statement about Premium Lock or Eventual that is false, misleading or inconsistent with the Customer Terms, the Program Rules or approved Marketing Materials, or, except in wording that Eventual supplies, any statement that Premium Lock is required, issued, backed or approved by any insurer, lender or Governmental Authority, limits what an insurer may charge, or guarantees the availability or renewal of insurance; (d) accept the Customer Terms or authorize payment on behalf of any Prospect or Customer, except through a process that Eventual has approved; (e) charge any fee in connection with Premium Lock, or receive any compensation relating to it other than through Eventual; (f) pay or rebate any part of the Fee, or condition the purchase or price of insurance on enrollment in Premium Lock (or the reverse), except under a program that Eventual has approved in writing; (g) use Eventual’s names or marks in any domain name, account name or paid search advertising; (h) induce any Customer to cancel Premium Lock, or disparage Eventual or Premium Lock; or (i) misuse the Platform, Eventual Data or Eventual’s confidential information.
4.3 Marketing Materials. Distributor shall use only Marketing Materials that Eventual has provided or approved in writing in advance, in the form approved, and shall not remove any disclosure or any identification of Eventual as the provider of Premium Lock. Distributor shall stop using and remove any Marketing Material within seven (7) days after Eventual’s request. Eventual owns all Marketing Materials, other than the Distributor Parties’ own names and marks.
4.4 Enrollment and Accuracy. Distributor shall use only the enrollment process that Eventual prescribes, and shall ensure that each Prospect receives the disclosures that Eventual requires and personally accepts the Customer Terms and authorizes payment before enrollment, unless Eventual has approved a different process. Distributor shall ensure that all information and documents that a Distributor Party submits are true, complete and unaltered. Before enrollment, Distributor shall disclose through the Platform anything that a Distributor Party knows that is material to the price or eligibility of Premium Lock for that Prospect and is not reflected in the documents submitted, such as a pending renewal offer, rate change, non-renewal or claim, and shall not time or select any enrollment on the basis of undisclosed information of that kind.
4.5 Documentation. For each Customer whose enrollment a Distributor Party originated, Distributor shall submit through the Platform, within the time stated in the Platform or, if none is stated, within thirty (30) days after the document becomes available to a Distributor Party: (a) the declarations page for the insurance policy in effect at enrollment and for each renewal, replacement or rewrite while the Customer’s Premium Lock is in force; (b) notice of any cancellation, non-renewal or change of insurer or coverage; and (c) any other document that Eventual requests to administer or verify Premium Lock. Distributor shall complete each other task assigned in the Platform within the time specified. Eventual may obtain any document directly from the Customer, the insurer or another source, and may withhold Compensation while any document is overdue. This Section continues to apply after termination for as long as the Customer’s Premium Lock remains in force.
4.6 Communications. Distributor is responsible for ensuring that every call, text message, email and mailing about Premium Lock that a Distributor Party makes, or that Eventual makes at Distributor’s request, in Distributor’s name or using contact information that a Distributor Party supplies, complies with applicable law, including telemarketing, do-not-call, consent and opt-out requirements. Distributor represents that it has the consent and other rights needed for each person whose contact information it supplies to be contacted about Premium Lock by Distributor and by Eventual, and shall communicate each opt-out to Eventual within seven (7) days. Distributor authorizes Eventual to prepare price quotes for clients of the Distributor Parties using Policy Data, and to send them communications about Premium Lock in Distributor’s name and using Distributor’s marks.
4.7 Records and Audit. Distributor shall keep complete records of its activities under this Agreement, including Marketing Materials used, communications with Prospects and Customers about Premium Lock, consents and complaints, for seven (7) years after the related Customer’s Premium Lock ends. On five (5) business days’ notice, or sooner if a Governmental Authority requires, Distributor shall give Eventual, its Backing Providers and any Governmental Authority access to those records for inspection and audit, and shall comply with any marketing approval, reporting or audit requirement of a Backing Provider or Governmental Authority that Eventual communicates to it.
5.1 Compensation Schedule and Payment. Eventual shall pay Distributor the compensation (“Compensation”) stated in the schedule that Eventual publishes in the Platform or otherwise provides to Distributor (the “Compensation Schedule”) for each enrollment that Distributor originates through the Platform in compliance with this Agreement, that Eventual accepts, and that Eventual’s records attribute to Distributor. Eventual alone sets the Compensation Schedule and the Fee, and its records determine which Distributor, if any, is credited with an enrollment. All compensation to the Distributor Parties relating to Premium Lock must flow exclusively through Eventual. Eventual shall pay Compensation on or about the fifteenth (15th) day of each month for amounts that became payable in the prior month, by ACH to the account that Distributor designates in the Platform. Distributor is responsible for keeping its payment and tax information current and for all taxes on Compensation.
5.2 Earning and Chargebacks. Compensation is earned only on Fees that Eventual receives and retains. Compensation that is paid as a one-time amount, or otherwise in advance of the related Fees, is an advance. Unless the Compensation Schedule states otherwise, an advance is earned ratably over the first twelve (12) months of the Customer’s Premium Lock, and none of it is earned if the Customer cancels or stops paying within the first ninety (90) days. Distributor shall repay, and Eventual may charge back: (a) the unearned part of any advance, if the Customer’s Premium Lock ends or the Customer stops paying before the advance is fully earned; (b) Compensation that corresponds to any Fee that is refunded, reversed or not collected; and (c) all Compensation on an enrollment procured through the fraud, misrepresentation or material error of a Distributor Party, together with any payout that Eventual makes as a result. Eventual may set off any amount that a Distributor Party owes it against any Compensation, and Distributor shall pay any remaining balance within thirty (30) days after demand.
5.3 Statements and Changes. Each Compensation statement is final unless Distributor objects in writing within sixty (60) days after it is made available. Eventual may change the Compensation Schedule on thirty (30) days’ notice, or immediately if the change increases Compensation or is made under Section 8.2. A change applies to enrollments accepted, and to Fees received, on or after its effective date.
6.1 Customers. Each Customer is Eventual’s customer for Premium Lock. As between the Parties, Eventual owns the Customer relationship with respect to Premium Lock, each Customer’s agreement with Eventual and its records, and all rights to service, renew, market and sell Premium Lock and Eventual’s other products, and may communicate with any Customer for any purpose relating to its products, during and after the Term. Subject to Eventual’s rights under this Agreement, Distributor retains whatever ownership it has in the expirations of the insurance policies that it places and in its own business records. “Expirations” refers only to insurance policies and not to Premium Lock or any Eventual Data.
6.2 Eventual Data. As between the Parties, Eventual exclusively owns the Eventual Data, the Platform, Premium Lock, the Marketing Materials, Eventual’s names and marks, and its software, models, predictive systems and pricing logic, and all intellectual property rights in them.
6.3 Policy Data. As between the Parties, Eventual owns each copy, extract and record of Policy Data that is in the possession or control of, or is accessed by, Eventual or its affiliates or service providers (the “Eventual Copies”), independently of Distributor and with no duty to account to any Distributor Party or to return or delete any data at its request. Distributor assigns to Eventual any right that a Distributor Party has in the Eventual Copies. Distributor may retain and use its own copies of Policy Data in its own records.
6.4 License. To the extent that any right in Policy Data does not vest in Eventual under Section 6.3, Distributor grants Eventual and its affiliates a perpetual, irrevocable, worldwide, royalty-free, transferable and sublicensable license to use, copy, analyze, disclose and otherwise exploit the Policy Data for any lawful purpose, including pricing and prediction; offering, administering and marketing Premium Lock and other products; developing and training models; research and reporting; arrangements with Backing Providers; compliance; and any financing or corporate transaction.
6.5 De-identified, Aggregated and Derived Data. Eventual may de-identify or aggregate Policy Data, and need not do both, and may create Derived Data. Eventual may use and disclose De-identified Data, aggregated data and Derived Data for any purpose, without restriction, and no model or other Derived Data is subject to any obligation of return or deletion. Eventual’s rights under this Section 6 apply to the fullest extent permitted by applicable law, and to all Policy Data whenever it was made available, including before the Effective Date. The purposes for which Policy Data is made available to Eventual include every purpose described in Section 6.4, and any legal restriction on particular data applies only to that data and only to the minimum extent required.
6.6 Distributor’s Use of Eventual Data. Distributor may view through the Platform the price quotes, predictions and other Eventual Data relating to its own Prospects and Customers, solely to present Premium Lock to that Prospect or to assist that Customer. Distributor shall not export or store Eventual Data outside the Platform (other than quote documents generated for the Prospect or Customer, and data that an approved integration writes to Distributor’s systems), disclose it to any insurer, competitor or other third party, or use it to develop, train, price or benchmark any model, product or service.
6.7 Distributor’s Data Warranties. Distributor represents and warrants that each Distributor Party has all rights, consents and authority, and has given all notices, required under applicable law and under its agreements with insurers, networks, vendors and clients, to make Policy Data available to Eventual and to grant the rights in this Section 6, and that doing so does not violate any privacy notice or agreement that binds a Distributor Party.
6.8 Marks and Publicity. Eventual may use the Distributor Parties’ names, marks, testimonials, feedback and factual performance information in its Marketing Materials, in communications under Section 4.6, and in press releases, investor communications and other publicity, unless and until Distributor revokes this right by written notice to Eventual. A revocation takes effect thirty (30) days after Eventual receives it and does not require Eventual to withdraw materials already published or distributed. During the Term, Distributor may use Eventual’s names and marks, in the form that Eventual specifies, solely to market Premium Lock under this Agreement, and all goodwill from that use belongs to Eventual. Distributor shall not issue any press release about Eventual or Premium Lock without Eventual’s written consent.
7.1 Confidentiality. Distributor shall keep confidential, and use only to perform this Agreement, all non-public information of Eventual, including the Platform, pricing and eligibility logic, models, Compensation, the Program Rules, the identity and terms of any Backing Provider, and all Eventual Data (other than Distributor’s own copies of Policy Data), and shall return or destroy it on request. Eventual shall use reasonable care to protect non-public business information that Distributor identifies in writing as confidential, but may disclose it to its affiliates, service providers, advisors, Backing Providers, financing sources, acquirers and Governmental Authorities. Eventual handles the personal information of Customers and Prospects in accordance with the Customer Terms and applicable law.
7.2 Security and Platform Use. Distributor shall maintain reasonable administrative, technical and physical safeguards for personal information and for Platform credentials. Each user of the Platform must be an individual with unique credentials that are not shared, and Distributor shall deactivate any user within one (1) business day after the user leaves a Distributor Party. Distributor shall notify Eventual within twenty-four (24) hours after becoming aware of any unauthorized access to or disclosure of any Platform credential, Eventual Data or personal information of a Prospect or Customer, and shall cooperate in the response at its own expense. Distributor shall use the Platform only as this Agreement permits, and shall not scrape or harvest data from it, reverse engineer it or any model or pricing logic, access it by automated means other than an approved integration, circumvent any security control, submit queries in order to infer Eventual’s models, or allow access by anyone other than its authorized users.
8.1 Regulatory Events. A “Regulatory Event” means any change in or new interpretation of applicable law, any inquiry, order, guidance or other action or position of a Governmental Authority, any claim or proceeding, or any advice of Eventual’s counsel, that concerns the offer, characterization, terms, marketing or backing of Premium Lock, or the compensation paid in connection with it, in any jurisdiction.
8.2 Eventual’s Rights. If a Regulatory Event occurs, or Eventual reasonably anticipates one, Eventual may, to the extent that it reasonably considers necessary to address the Regulatory Event, and effective on notice to Distributor: (a) suspend or stop the marketing of, or enrollment in, Premium Lock in any affected jurisdiction; (b) change the terms, disclosures, Marketing Materials or Program Rules for Premium Lock, the Compensation payable on later enrollments and Fees, or this Agreement; (c) restructure Premium Lock or its distribution, including by offering it through an affiliate or a third party, and assign this Agreement in whole or in part to that person; and (d) cancel, refund or re-document affected Customer agreements. Eventual will give as much advance notice as is reasonably practicable, and Distributor shall reasonably cooperate, including by completing any documentation needed to continue marketing Premium Lock as restructured and by assisting with Customer notices and refunds. Compensation earned before the notice is not affected, except for chargebacks under Section 5.2. If Distributor does not accept a change made under this Section, it may terminate this Agreement immediately on written notice. No action under this Section is a breach of this Agreement or makes Eventual liable to any Distributor Party, including for lost Compensation.
8.3 Complaints and Inquiries. Distributor shall notify Eventual in writing within forty-eight (48) hours after a Distributor Party becomes aware of any complaint, threatened claim or misunderstanding about the nature of Premium Lock by a Prospect or Customer, and within twenty-four (24) hours after it receives any inquiry, subpoena or other communication from a Governmental Authority, or notice of any legal proceeding, relating to Premium Lock or Eventual. To the extent permitted by applicable law, Distributor shall not respond to or initiate contact with any Governmental Authority, claimant or the media about Premium Lock without first giving Eventual the opportunity to review and direct the response, and Eventual controls the response to any such matter to the extent that it relates to Premium Lock or Eventual. Distributor shall cooperate and preserve all relevant records.
8.4 No Admission; Conformity to Law. Nothing in this Agreement is an admission that Premium Lock is, or is regulated as, insurance or any other regulated product in any jurisdiction. If any provision conflicts with applicable law in a jurisdiction, it is modified in that jurisdiction only, and only to the minimum extent necessary.
9.1 By Distributor. Distributor shall indemnify, defend and hold harmless Eventual, its affiliates and their respective officers, employees and agents from all losses, liabilities, damages, fines, penalties, costs and expenses, including reasonable attorneys’ fees (“Losses”), to the extent arising out of: (a) any misrepresentation or unauthorized statement about Premium Lock or Eventual by a Distributor Party; (b) any breach of this Agreement or violation of applicable law by a Distributor Party; (c) the negligence, fraud or willful misconduct of a Distributor Party; (d) any insurance business of a Distributor Party; (e) any communication made by a Distributor Party, or any contact information or consent that a Distributor Party supplied; or (f) a Distributor Party’s lack of the right to make Policy Data or personal information available to Eventual. Distributor is not responsible for Losses to the extent caused by Eventual’s breach of this Agreement, gross negligence or willful misconduct, or by statements in Marketing Materials used in the form that Eventual supplied. Eventual may control the defense and settlement of any covered claim at Distributor’s expense, and Distributor shall not settle any claim or make any admission without Eventual’s written consent.
9.2 By Eventual. Eventual shall indemnify Distributor from Losses that Distributor is required to pay to an unaffiliated third party under a final judgment, to the extent that they result from Eventual’s willful misconduct or gross negligence in selling Premium Lock, subject to Distributor’s prompt notice of the claim and Eventual’s control of its defense. This does not apply to Losses arising out of a Regulatory Event or the legal or regulatory characterization of Premium Lock.
10.1 Disclaimers. The Platform, Premium Lock, the Marketing Materials, and all quotes, predictions, training and support are provided to Distributor “as is.” To the fullest extent permitted by applicable law, Eventual disclaims all warranties to Distributor, including as to the accuracy of any prediction (Eventual’s only obligations regarding accuracy are those that it owes to Customers), the Compensation that Distributor may earn, and the legal or regulatory treatment of Premium Lock.
10.2 Limitation of Liability. To the fullest extent permitted by applicable law, Eventual and its affiliates are not liable to any Distributor Party for any indirect, special, consequential or punitive damages, or for any lost profits, revenue, Compensation or goodwill, and their total liability arising out of or relating to this Agreement shall not exceed the Compensation that Eventual paid to Distributor in the twelve (12) months before the event giving rise to the liability. No Distributor Party may bring a claim relating to this Agreement more than one (1) year after it accrued.
11.1 Term. This Agreement begins on the Effective Date and continues until terminated (the “Term”). Either Party may terminate it for any reason on at least thirty (30) days’ written notice.
11.2 Termination for Cause and Suspension. Eventual may terminate this Agreement, in whole or as to any jurisdiction, Sub-Distributor or user, immediately on written notice if a Distributor Party: (a) misrepresents Premium Lock, commits fraud or engages in other conduct that Section 4.2 prohibits; (b) breaches this Agreement or the Program Rules; (c) becomes insolvent or ceases to conduct business; or (d) engages in conduct that Eventual determines may harm Customers or Eventual’s reputation or expose Eventual to legal or regulatory risk. Eventual may also terminate immediately if a Regulatory Event occurs or if Distributor has originated no enrollment for twelve (12) consecutive months. Eventual may at any time suspend or limit the access of any Distributor Party, and withhold Compensation, while it investigates a suspected breach, after any notice of termination, in connection with a Regulatory Event, or to protect Customers, the Platform or Eventual.
11.3 Effect of Termination. On termination: (a) Distributor’s authorization ends, and Distributor shall stop marketing Premium Lock and using Eventual’s marks and Marketing Materials, and shall return or destroy Eventual’s confidential information, other than records that Section 4.7 requires it to keep; (b) Eventual may revoke access to the Platform, but may give Distributor limited access solely to continue servicing Premium Lock, including renewal documentation, for its existing Customers; (c) Distributor is entitled only to Compensation that was earned and payable before the termination date, net of chargebacks whenever they arise; and (d) each Customer’s Premium Lock continues, and Eventual may deal directly with Customers and credit them to another Distributor, without obligation to Distributor.
11.4 Survival. Sections 1, 2.2 to 2.5, 3.2, 4.5 to 4.7, 5.2, 5.3 and 6 to 13 survive termination, together with any other provision that by its nature is intended to survive.
12.1 Governing Law and Arbitration. This Agreement, and any dispute relating to it, is governed by the laws of the State of New York, without regard to its conflict-of-laws principles. Any dispute arising out of or relating to this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, in New York, New York, before a single arbitrator, who shall apply Section 10. Claims shall be arbitrated only on an individual basis. No Distributor Party may bring or join any class, consolidated or representative proceeding, and if this sentence is unenforceable as to a claim, that claim shall be resolved in court. The existence and content of any dispute are confidential.
12.2 Court Proceedings. Either Party may seek temporary or injunctive relief in court to protect its rights pending arbitration, and Eventual may bring in court any claim to protect its data, intellectual property or confidential information or to collect amounts owed to it. The state and federal courts located in New York County, New York have exclusive jurisdiction over any court proceeding, and each Party waives trial by jury. Distributor shall reimburse Eventual’s reasonable attorneys’ fees and costs of enforcing this Agreement or collecting amounts owed under it.
13.1 Amendment. Eventual may amend this Agreement on thirty (30) days’ notice, and may change the Program Rules at any time, effective when published. Distributor’s continued use of the Platform or marketing of Premium Lock on or after the effective date is acceptance of the amendment. If Distributor does not agree, its sole remedy is to terminate under Section 11.1. An amendment to Section 12.1 does not apply to a claim for which arbitration was demanded before its effective date. No other amendment or waiver is effective unless signed by Eventual.
13.2 Assignment. Distributor shall not assign or transfer this Agreement, including by change of control, without Eventual’s prior written consent, and shall give Eventual at least thirty (30) days’ prior notice of any change of control or transfer of its book of business. Eventual may assign this Agreement, in whole or in part, to any affiliate, successor, Backing Provider or other person.
13.3 Notices. Eventual may give notice by email to the address that Distributor provides or by posting in the Platform, effective when sent or posted. Distributor shall give notice by email to contact@eventualclimate.com, or to another address that Eventual designates, effective on receipt, and shall also send any notice of breach, claim or termination by courier to Eventual’s address below.
13.4 General. This Agreement, with the Compensation Schedule and the Program Rules, is the entire agreement between the Parties on its subject matter and supersedes all prior agreements on it, except that rights of, and amounts owed to, Eventual that accrued earlier are preserved. If any provision is held unenforceable, it shall be enforced to the maximum extent permitted and the rest remains in effect. No delay by Eventual in exercising a right waives it. Eventual’s affiliates may enforce this Agreement, and no other third party has any right under it. This Agreement may be accepted by signature or electronically through the Platform, and each individual who accepts it for Distributor represents that he or she is authorized to bind Distributor.
By signing below or accepting this Agreement electronically, Distributor agrees to all of its terms, including the arbitration agreement and the waiver of class proceedings in Section 12.
EVENTUAL SERVICES LLC
35 White St, Floor 6, New York, NY 10013
Name: Dylan DiMarchi
Title: CEO