Revision 091520 brz/p
The Master Policy Management Agreement and the Renter’s Insurance Marketing Agreement are individually and collectively, as applicable to the features, products and services you use, referred to as the Renter’s Insurance Terms of Use (the “RI TOU”).
MASTER POLICY MANAGEMENT AGREEMENT
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Your license of, access to and use of Renter’s Insurance in conjunction with Yardi Breeze or Yardi Breeze Premier (collectively, “Yardi Breeze”) is made by and between you and Peak Insurance Advisors, LLC, a Texas limited liability company (“Peak”). For good and valuable consideration including the rights and obligations of the parties in the TOU and this Master Policy Management Agreement (the “Agreement”), you acknowledge and agree as follows:
Peak is an insurance producer appointed by certain insurance underwriters and/or agents (“Insurer”) and is authorized to solicit and accept proposals for Insurer’s landlord required tenant legal liability policies (each a “Master Policy,” and collectively the “Master Policies”). Client desires to purchase a Master Policy to provide certain limited tenant premises liability coverage for the insured location(s) specified herein (and, in certain cases, limited tenant personal contents coverage), pursuant to the terms and conditions of this Agreement and each applicable Master Policy, in connection with the Client’s management of units using Yardi Breeze.
1. Insurer Master Policy. The Master Policy issued to Client is underwritten by Insurer. PEAK ACTS AS AN INSURANCE PRODUCER ONLY AND PEAK IS NOT AN UNDERWRITER OR INSURER. Peak is authorized to solicit and accept proposals for Master Policies and may issue Master Policies as provided by Insurer. Client (or Client’s designated entity, e.g., the ownership entity of each property) will be the named insured. The tenant is only an additional insured and not a named insured under the Master Policy. For information on premiums, liability coverages, exclusions, and conditions under the Master Policy, Client should refer directly to the Master Policy. Client shall provide Peak with a list of properties within 30 days of initiating the Master Policy (“Property” or “Properties”), to which properties this Agreement shall apply.
2. Term and Cancellation or Non-Renewal.
a. The Initial Term, Term and the process for cancelling or terminating your Master Policy is tied to your registration of Yardi Breeze. If your Yardi Breeze agreement is cancelled or terminated, this Agreement is automatically cancelled or terminated at the same time. You may terminate the Master Policy with 30 days’ notice, without cancelling Yardi Breeze, by contacting a Yardi Breeze representative at (800) 866-1144. If Client or Client’s designated entity sells or ceases to manage a Property, then this Agreement shall terminate with respect to such Property.
b. Peak may terminate this Agreement if: (i) there has been a material breach that is not or cannot be cured within 7 days of written notice; or (ii) there has been a material breach and you do not acknowledge the breach or work diligently to cure the breach within a time period that is satisfactory to Peak.
c. Effect of Cancellation or Expiration of Master Policy. Upon cancellation or non-renewal of a Master Policy for any reason, all coverage shall immediately cease for all tenants.
d. Effect of Termination or Expiration of this Agreement. Upon termination or expiration of this Agreement, the relevant renter’s insurance functionality within Client’s instance of Yardi Breeze may be disabled.
e. Survival of Agreement Obligations. The parties’ obligations under Sections 4 (Confidentiality), 5 (Warranties), 6 (Damage Limitations), 7 (Waiver of Policy-Related Claims), 8 (Disputes), and 10 (General Provisions) shall survive this Agreement’s termination or expiration.
3. Premium Reporting and Remittance.
a. Premiums. Premiums shall be computed in accordance with Insurer’s rates as specified in the policy declarations or as amended from time to time by Insurer.
b. Reporting Schedule. Client authorizes Peak to extract the reporting schedule data from the database associated with Client’s instance of the property management software program that Client is licensing from Yardi. Peak shall deliver the reporting schedule to Insurer. Client is solely responsible for the accuracy of the data contained in the reporting schedule, which shall include all current enrolled units and prior month policy terminations and cancellations.
c. Remittance of Premiums. The premiums and any applicable taxes and fees set forth in Client’s Master Policy (together, the “Premiums”) shall be due and payable to Peak within 15 days of date of invoice thereof. Peak shall deduct its commission and remit the remaining Premiums to Insurer in a timely manner. Coverage for any individual residence premises and the occupying tenants will not be effective unless Client populates the reporting schedule and the appropriate Premium has been paid for such residence premises.
d. Failure to Pay. In the event of nonpayment or delayed payment of Premium or nonpayment of a monthly installment Premium, Insurer may, in its sole discretion, deny coverage and the same shall constitute cancellation of the policy. Client’s partial payment of Premiums are subject to the terms of the Master Policy, which may include cancellation thereof.
4. Confidentiality. The terms of Confidentiality, Exceptions, Disclosure Obligations, and Returning Confidential Information in the TOU shall apply among you, Yardi and Peak. Notwithstanding the foregoing, Peak may disclose Client Confidential Information to insurers, insurer agents, and other relevant third parties as necessary for the purpose of facilitating binding coverage under the Master Policies.
5. Warranties
a. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, PEAK DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH REGARD TO THE SERVICES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
b. Administrative Fee. The parties acknowledge that Client, in its sole discretion, has determined the amount of the administrative fee, if any, it will charge and collect in addition to the Premiums, and Peak makes no representation that such additional fee is permissible under applicable state or local law.
6. Damage Limitations
a. Damage Waiver. REGARDLESS OF ANY OTHER PROVISION IN THIS AGREEMENT, AND TO THE FULLEST extent allowed by applicable law, PEAK DISCLAIMS ALL OBLIGATIONS AND LIABILITIES FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, ATTORNEYS’ AND EXPERTS’ FEES, AND COURT COSTS (EVEN IF PEAK HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.
b. Liability Limit. In addition to the limitations otherwise set forth in this agreement, and to the fullest extent allowed by applicable law, Client agrees that in the event of any claim or cause of action by Client arising out of or connected with this Agreement, PEAK’s maximum liability to Client, regardless of the amount of loss client may have suffered, shall not exceed twenty-five THOUSAND DOLLARS ($25,000.00).
7. Waiver of Policy-Related Claims. Client acknowledges that Peak is merely an agent for Insurer and all claims under or relating to the Master Policies shall be made against Insurer. Client acknowledges that Peak is not liable for any claims under or relating to the Master Policies.
8. Disputes. The Disputes provision of your Yardi Breeze TOU as between you and Yardi shall apply as between you and Peak, and by this reference that provision is incorporated herein.
9. Assignment. This Agreement cannot be assigned by you for any reason without the prior, express, written consent of Peak, which Peak may withhold in its sole discretion. Any attempted or purported assignment without Peak’s prior, express, written consent is void. This Agreement is binding on and inures to the benefit of both you and Peak and our respective, authorized assigns, successors, and legal representatives.
10. General Provisions.
a. Independent Contractor Status. The parties agree that they are independent contractors and nothing in this Agreement is intended to make the parties partners, agents, joint venturers, or any other form of joint enterprise, or to make the employees, agents, or representatives of one of the parties into employees, agents, or representatives of the other party. No party to this Agreement shall have any express or implied right or authority to assume or create any obligations on behalf of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
b. Governing Law. This Agreement shall be governed and determined by the laws of the United States and the State of Texas as such laws are applied to agreements made and performed entirely within the State of Texas.
c. Venue. Any action or proceeding related to or arising out of this Agreement shall be resolved only in a court of competent jurisdiction in the City of Dallas, State of Texas (or the court of competent jurisdiction closest to the City of Dallas, TX if no court of competent jurisdiction resides in the City of Dallas, TX), and the parties consent to the personal jurisdiction of such courts and expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere.
d. Binding Effect. This Agreement is binding on and inures to the benefit of the parties and their permitted assigns, successors, and legal representatives.
e. Notices. All notices that Peak may be obligated to provide you will be sent to the email address you pro-vided during your Yardi Breeze registration and as may be updated by you from time to time. You expressly acknowledge and agree to keep your email address up to date. If you have any reason to contact Peak about your Services or provide Peak with a notice pursuant to this Agreement, you must write to Peak at:
PEAK INSURANCE ADVISORS, LLC
8616 Freeport Pkwy, Suite 300
Irving, TX 75063
f. Waiver. The waiver of a party’s breach of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach.
g. Severability. If a court or other body of competent jurisdiction determines that any part of this Agreement is unenforceable, the remainder of this Agreement shall nevertheless remain enforceable.
h. Headings. This Agreement’s section headings and captions are inserted for convenience only and are not intended to form a material part of this Agreement.
i. Modification. You may not modify or amend this Agreement except with the prior written approval of Peak. Peak may modify the terms of this Agreement from time to time. TO ACCESS THE MOST CURRENT VERSION OF THIS AGREEMENT, CLICK ON YARDI® BREEZE TERMS OF USE OR ON THE “COMPANY SETTINGS” SCREEN WITHIN THE YARDI BREEZE SOFTWARE. BY CONTINUING TO USE YARDI BREEZE AND THE SERVICES UNDER THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPT THE MOST CURRENT VERSION OF THIS AGREEMENT.
j. Client Leases. Peak renders no legal opinion with respect to Client’s lease agreements. Client should obtain advice from its own legal counsel as to the enforceability and applicability of any provision, amendment or addendum to Client’s lease agreement relating to renter’s insurance.
RENTER’S INSURANCE MARKETING AGREEMENT
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Your license of, access to and use of Renter’s Insurance in conjunction with Yardi Breeze or Yardi Breeze Premier (collectively, “Yardi Breeze”) is made by and between you and Peak Insurance Advisors, LLC, a Texas limited liability company (“Peak”). For good and valuable consideration including the rights and obligations of the parties in the TOU and this Renter’s Insurance Marketing Agreement (this “Agreement”), you acknowledge and agree as follows:
Client is the owner or manager of certain multifamily apartment communities and/or single-family homes. Peak markets, solicits and enrolls residents in ResidentShield® HO4 policies (a “Policy,” and collectively, the “Policies”). Client desires to allow Peak to market and solicit such policies to Client’s Residents, and to facilitate Residents’ enrollment in the Policies.
1. Definitions
“Advertising Materials” means any and all marketing material prepared for dissemination to the public with respect to insurance, including, but not limited to, direct mail solicitations, brochures, advertising packages, letters, applications, point of sale materials, web-site advertising, e-mail solicitations, text messages and training materials used by Peak to market and solicit the Policies.
“Client Resident” means a Resident who enrolls in a Policy.
“Contractor” means any third-party providing services to Client who is not a provider or an affiliate of a provider of real property management and accounting software or renters’ insurance policies and related services.
“Force Majeure Event” means any event beyond the reasonable control of the party affected by such event, including without limitation fire, storm, weather, earthquake, explosion, casualty, strike, war, riot, civil disturbance, act of God, acts or omission of any third party, any state or federal law, decree or ordinance, or any executive or judicial order, which event causes a party to delay or fail to perform under this Agreement.
“Property” or “Properties” means the Property or Properties identified on a list to be provided by Client to Peak within 30 days of initiating the Services
“Services” means the marketing and soliciting of Policies to Residents, and the facilitation of Client Residents’ enrollment in such Policies, and any other related services expressly set forth in this Agreement (including in a schedule or addendum hereto).
“Resident” means a tenant at a Property.
“Unit” means an individual unit space located at a Property that is either occupied by a Resident or is available for rent.
2. Term and Termination
a. The Initial Term, Term and the process for cancelling or terminating this Agreement is tied to your registration of Yardi Breeze. If your Yardi Breeze agreement is cancelled or terminated, this Agreement is automatically cancelled or terminated at the same time. You may terminate this Agreement with 30 days’ notice, without cancelling Yardi Breeze, by contacting a Yardi Breeze representative at (800) 866-1144. If Client or Client’s designated entity sells or ceases to manage a property, then this Agreement shall terminate with respect to such property.
b. Peak may terminate this Agreement if: (i) there has been a material breach that is not or cannot be cured within 7 days of written notice; or (ii) there has been a material breach and you do not acknowledge the breach or work diligently to cure the breach within a time period that is satisfactory to Peak.
d. Effect of Termination. Upon termination of this Agreement, (i) Client shall promptly return or destroy (at Peak’s discretion) the Advertising Materials in Client’s possession, and (ii) the relevant renter’s insurance functionality within Client’s instance of the Licensed Programs (as defined in Client’s SaaS subscription agreement with Yardi Systems, Inc.) may be disabled.
e. Survival. The parties’ obligations under, and the provisions of, sections 2(d) (Effect of Termination), 5 (Confidentiality), 6 (Warranty Disclaimer), 7 (Damage Limitations), 9 (Disputes) and 13 (General Provisions) shall survive this Agreement’s termination or expiration.
3. Client Representations, Warranties and Obligations. Client represents warrants and agrees that it shall have the following duties and authority:
a. For the Term of the Agreement, Client grants to Peak the exclusive right to market the Policies to Residents, such exclusive right including the placement and maintenance of Advertising Materials at Client’s offices and Property leasing offices, in a visible and accessible location, and as the parties may otherwise mutually agree. Client covenants that it shall not grant to any other individual or entity a right to market competing Policies or place competing Advertising Materials at Client’s offices, display advertising materials from other providers on Client controlled marketing or Resident-facing websites, or any Property leasing offices, or at any other location at any Property. Peak acknowledges that Client does not have complete control over advertising space in certain common areas of the Client’s properties. To the extent that either Client notices or Peak advises Client of a third party’s advertising efforts on Properties, Client shall use all reasonable efforts to have such third party’s advertising removed. Client represents and warrants to Peak that its grant of the exclusive right to market herein shall not violate any other agreement, promise or undertaking that Client has with any third party.
b. Client grants Peak the nonexclusive right to list the Properties participating in the Services on Peak’s insurance marketing websites, and grants Peak the nonexclusive right and license to utilize the Client’s logo(s) in its marketing and collateral materials, and various Peak lists.
c. Once it has approved any Advertising Materials, Client shall not interfere with the reasonable display of Advertising Materials in a manner and form established by Peak.
d. Client is not a licensed insurance agent of any entity, including Peak, and will not perform, and will instruct its employees and agents not to perform, any activities regulated by Laws related to the sale or provision of Services.
e. Client may not and shall not receive premiums on behalf of Peak for Services provided to Client Residents. In the event that Client inadvertently receives any premium payment, it shall promptly forward such premium payment to Peak and notify the applicable Client Resident of the appropriate mailing address for future premium payments.
f. Client grants Peak the right to market and solicit the Policies directly to Residents, including by electronic means or U.S. mail.
g. Client represents and warrants that it has full power and authority to enter into and perform this Agreement, and that the execution and delivery of this Agreement has been duly authorized by the owner and/or landlord of the Properties.
4. Peak Rights and Obligations. Peak shall perform the Services, comprising the following rights and obligations:
a. Create, develop and deliver all Advertising Materials. The Advertising Materials shall be subject to the prior written approval of Client, such approval not to be unreasonably withheld, conditioned or delayed. Peak shall provide representative samples of all Advertising Materials to Client for review. Client shall approve or reject each such offering within 10 business days of receipt thereof. To the extent Client fails to either approve or reject such offering within 10 business days, the Advertising Materials shall be deemed to have been approved by Client. Peak shall not be required to submit to Client for subsequent approval substantially similar types of Advertising Materials.
b. Market and solicit the Policies to Residents, including the right to communicate with Residents by electronic means or U.S. mail.
c. Facilitate the enrollment of Residents in the Policies, by requesting from such Residents the required information and delivering such information to the underwriter of the Policies (or such underwriter’s agent).
5. Confidentiality. The terms of Confidentiality, Exceptions, Disclosure Obligations, and Returning Confidential Information in the TOU shall apply among you, Yardi and Peak. Notwithstanding the foregoing, Peak may disclose Client Confidential Information to insurers, insurer agents, and other relevant third parties as necessary for the purpose of enrolling a Resident in a Policy.
6. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, PEAK DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH REGARD TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Damage Limitations
a. DAMAGE WAIVER. REGARDLESS OF ANY OTHER PROVISION IN THIS AGREEMENT, AND TO THE FULLEST extent allowed by applicable law, PEAK DISCLAIMS ALL OBLIGATIONS AND LIABILITIES FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, ATTORNEYS’ AND EXPERTS’ FEES, AND COURT COSTS (EVEN IF PEAK HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.
b. LIABILITY LIMIT. In addition to the limitations otherwise set forth in this agreement, and to the fullest extent allowed by applicable law, Client agrees that in the event of any claim or cause of action by Client arising out of or connected with this Agreement, whether in contract, tort or any other theory of liability, PEAK’S maximum liability to Client, regardless of the amount of loss client may have suffered, shall not exceed TWENTY-FIVE thousand dollars ($25,000.00).
8. Assignment. This Agreement cannot be assigned by you for any reason without the prior, express, written consent of Peak, which Peak may withhold in its sole discretion. Any attempted or purported assignment without Peak’s prior, express, written consent is void. This Agreement is binding on and inures to the benefit of both you and Peak and our respective, authorized assigns, successors, and legal representatives.
9. Disputes. The Disputes provision of your Yardi Breeze TOU as between you and Yardi shall apply as between you and Peak, and by this reference that provision is incorporated herein.
10. Audits. Each party shall, upon reasonable notice from the other party, and no more often than once annually, make available for inspection to the other party during regular business hours, records pertaining to the party’s performance of its obligations under this Agreement. Any information to which an inspecting party hereunder shall have access hereunder shall be deemed Confidential Information.
11. Intellectual Property. ResidentShield and ResidentShield.com are the trademarks and trade names of Peak. Client may not use such trademark without the prior written consent of Peak. Peak owns the copyright in any and all materials it may provide to Client for use under this Agreement and Client may not reproduce such materials without the prior written consent of Peak.
12. Compliance with Law. Each party agrees to comply with the provisions of all federal, state, county, and local laws, ordinances, regulations and codes directly applicable to such party.
13. General Provisions
a. Independent Contractor Status. The parties agree that they are independent contractors and nothing in this Agreement is intended to make the parties partners, agents, joint venturers, or any other form of joint enterprise, or to make the employees, agents, or representatives of one of the parties into employees, agents, or representatives of the other party. No party to this Agreement shall have any express or implied right or authority to assume or create any obligations on behalf of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
b. Governing Law. This Agreement shall be governed and determined by the laws of the United States and the State of Texas as such laws are applied to agreements made and performed entirely within the State of Texas.
c. Venue. Any action or proceeding related to or arising out of this Agreement shall be resolved only in a court of competent jurisdiction in the City of Dallas, State of Texas (or the court of competent jurisdiction closest to the City of Dallas, TX if no court of competent jurisdiction resides in the City of Dallas, TX), and the parties consent to the personal jurisdiction of such courts and expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere.
d. Binding Effect. This Agreement is binding on and inures to the benefit of the parties and their permitted assigns, successors, and legal representatives.
e. Notices. All notices that Peak may be obligated to provide you will be sent to the email address you pro-vided during your Yardi Breeze registration and as may be updated by you from time to time. You expressly acknowledge and agree to keep your email address up to date. If you have any reason to contact Peak about your Services or provide Peak with a notice pursuant to this Agreement, you must write to Peak at:
PEAK INSURANCE ADVISORS, LLC
8616 Freeport Pkwy, Suite 300
Irving, TX 75063
f. Waiver. The waiver of a party’s breach of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach.
g. Severability. If a court or other body of competent jurisdiction determines that any provision of this Agreement is illegal or unenforceable, that provision will be severed from this Agreement, and the remaining provisions will remain enforceable.
h. Headings. This Agreement’s section headings and captions are inserted for convenience only and are not intended to form a material part of this Agreement.
i. Non-Solicit/Non-Hire. The parties agree not to solicit (other than a general solicitation to the public) the employment of, engage as an independent contractor, or hire, any employee of the other party while such person is an employee of the other party and until such person has not been an employee of the other party for 6 months.
j. Modification. The parties may only modify or amend this Agreement by a writing signed by both parties.
k. Force Majeure. Neither party shall be liable under this Agreement for failure or delay in performance caused by a Force Majeure Event. If a Force Majeure Event occurs, the party affected shall use commercially reasonable efforts to resume the performance excused by the Force Majeure Event.
l. Peak Not an Insurer. Client acknowledges and agrees that Peak is not the underwriter of the Policies, is not an insurer, and is not obligated to settle Policy claims with or on behalf of Client Residents.