Terms of Business
Virtus LLC, and its insurance brokerage subsidiaries and affiliates (collectively referred to in these Terms of Business as “we”, “us”, “our” or the “Virtus”) aims to provide you with insurance products and services that protect and enhance your business. To help us achieve this, it is important to understand what we do as your insurance broker. These terms of business (“Terms of Business”) set out the basis upon which we agree to provide services to you.
These Terms of Business shall apply to you and your related parties, subsidiaries and affiliates (collectively referred to as “you”, “your” or “Client”). For your benefit and protection, you should read these Terms of Business carefully and ensure that you understand each. If you have any questions about these Terms of Business please raise them with us immediately.
Dealing with us in the usual course of business (including but not limited to the provision of instructions to us, the acceptance of policy documents from us, and the payment of any invoice that we render to you or otherwise) constitutes your acceptance of all of these Terms of Business.
NOTE: Not all of these Terms of Business provisions may apply to all Clients in every situation. For example, if you do not bind insurance in the surplus markets, then certain portions of Surplus Lines and Other Government Taxes provisions may not apply. If you have any questions as to the applicability of a provision, please contact us immediately.
Virtus will deliver our services based upon the information that the Client and its representatives provide. The Client is responsible for the accuracy and completeness of the information and Virtus accepts no responsibility arising from the Client’s failure to provide such information to Virtus. Virtus must receive promptly the information to deliver our services as well as the Client’s prompt updates to any information where there has been a material change which may affect the scope or delivery of our services, such as a change in the nature of the risk, insured entities, property values and persons or entities to be covered.
To the extent that any portion of Virtus’s compensation, by operation of law, agreement or otherwise, becomes adjusted or credited to the Client, it is the Client’s responsibility to disclose the actual net cost of the brokerage and insurance costs you have incurred to third party(ies) having an interest in such amounts.
Named Insured Summary
Please check to ensure all Named Insureds are on your policy. If an entity is not listed (including partnerships, corporations, joint ventures, limited liability companies, individual proprietorships, etc.), they are not included as a Named Insured and may not have coverage in the event of a claim. We must be notified of the formation or purchase of new companies as soon as possible so that the insurance ramifications may be considered. Do not assume they are covered automatically.
PLEASE READ THE FOLLOWING DISCLAIMER CAREFULLY:
As a service, Virtus may from time to time assist a primary or designated named insured (the “Lead Client”) in allocating certain premiums, fees and costs among Lead Client and its subsidiaries and affiliates (collectively, the “Client Group”). If an allocation methodology is used, then the following terms and conditions apply.
The amount of premium allocated to the invoice recipient among other members of the Client Group in the insurance program procured by the Lead Client and other entities affiliated with Lead Client is determined solely by Lead Client based on the allocation methodology agreed to by Lead Client from time to time. If the Lead Client does not determine an allocation method, we will utilize standard insurance methodology.
Virtus may deposit any payment from the Client Group in an interest-bearing account, along with payments from other entities affiliated with the Client Group or other unaffiliated Virtus clients, and Virtus will retain any interest earned on such funds while held prior to sending the funds to carriers. Lead Client may authorize and instruct Virtus to forward to carriers as and when necessary, any premium funds paid by any participant in the Client Group and return premiums received against amounts due to fulfill the total premium obligations due for the coverages procured by Lead Client for the Client Group under the insurance program for the applicable policy year and the applicable coverage.
Lead Client is responsible for any return premiums due to you. Payment of any invoice by you constitutes your acknowledgment, consent and agreement to the information provided in these Terms of Business.
Surplus Lines and Other Government Taxes
Insurance may not be available in the admitted marketplace for the terms and conditions specified by the Client. In such event, Virtus’s insurance proposal may include one or more insurers not licensed to transact insurance in the states of exposure and such coverage may be placed as surplus lines coverage pursuant to applicable insurance laws governing the placement of insurance with non-admitted insurers. Persons and entities insured by surplus lines insurers cannot avail themselves of the protection and recovery afforded by the state insurance guaranty funds if the surplus lines insurer becomes insolvent. The states do not audit the finances or review the solvency of surplus lines insurers.
In some instances, these insurance placements made by Virtus or its affiliates on the Client’s behalf may require the payment of state surplus lines, excise or other taxes and/or fees in addition to the premium itself. Virtus will endeavor to identify any such tax and/or fee in advance, but in all instances the payment of these taxes and/or fees will remain the responsibility of the Client. Virtus will invoice the Client for the payment of such taxes and fees where it is Virtus’s responsibility to do so.
IT IS IMPORTANT TO KEEP IN MIND THAT AN ADMITTED OR SURPLUS LINES STATUS, AS WELL AS THE RESULTING APPLICABILITY OF ANY STATE’S GUARANTY FUND, ARE ISSUES ONLY IF/WHEN A CARRIER IS DECLARED INSOLVENT.
Claim Notification to Insurers
Unless Virtus has a specific signed agreement with the Client to the contrary, it is the Client’s responsibility to take such steps as are necessary to directly notify those insurers whose policies may apply to any circumstances, occurrences, claims, suits, demands and losses in accordance with the terms and conditions of your policies. Virtus assumes no duty or responsibility with respect to such notifications or monitoring the Client’s obligation to place insurers on notice unless undertaken in a separate written agreement. The Client may send copies of such notices to members of Virtus staff for informational purposes only, but the receipt of such notice by Virtus shall not create additional duties or obligations owed by Virtus to the Client nor constitute notice to your insurers.
Contract and Lease Review; General Advice
In instances where Virtus provides summaries of contractual requirements or provisions, or any suggested additional or alternative wordings to any contract or lease at the Client’s request, the Client’s legal advisor must review such language before you take action based upon Virtus’s statements. Virtus does not and cannot provide legal advice as to whether the Client’s insurance program covers legal obligations contained in the Client’s contracts or leases. All descriptions of the insurance coverages are subject to the terms, conditions, exclusions and other provisions of the policies or any applicable regulations, rating rules or plans. Furthermore, it is understood that none of the services provided by Virtus are of a legal nature and Virtus shall not give legal opinions or provide legal advice or representations.
Confidentiality and File Retention Policy
Virtus takes client confidentiality seriously. We have established controls to protect your information. We are willing to enter into an agreement as you may require for the protection of your confidential data. The Client acknowledges and agrees that the work products provided by Virtus are not to be distributed, used or relied upon by third parties without the written consent of both Virtus and the Client, except as may be required by your legal, accounting and non-insurance financial advisors who agree to be bound by this confidentiality agreement.
Please tell us in writing before the end of the seven-year period if you want us to keep our files longer. We will extend the time as requested but may charge you a reasonable storage and administration fee.
Virtus encourages its retail brokers to approach markets directly (without an intermediary) wherever possible. However, where Virtus believes it is in the Client’s best interest, we may recommend the use of intermediaries, including but not limited to co-brokers, sub-brokers, managing general agents/managing general underwriters, wholesale brokers, reinsurance brokers, third-party consultants or service providers (collectively, “Intermediary”) to assist in the procurement and servicing of the Client’s insurance. Virtus prefers, wherever possible, to use the services of a Virtus-affiliated Intermediary and Virtus shall not be responsible for a non-Virtus affiliated Intermediary’s actual or alleged acts, errors, or omissions or those of its officers, directors or employees. Any and all compensation earned by an Intermediary in connection with the Programs shall be in addition to the compensation paid to Virtus and shall not be credited against the Fee or Commissions.
Collection and Use of Client Information
Virtus gathers data containing information about the Client and your insurance placements, as well as information about the insurance companies that provide coverage to the Client or compete for the Client’s insurance placements. In addition to the information provided by the Client, Virtus may collect information from commercially available sources. Such information may include name, address, email address and demographic data.
This information may be shared among Virtus affiliated businesses, as well as with third-party service providers acting on our behalf. In addition to being used to provide services to Virtus’s customers, the information may be used for business administration, business reporting, statistical analysis, marketing of Virtus products or services and providing consulting or other services to insurance companies for which Virtus or its affiliates may receive remuneration. Virtus takes appropriate measures to protect the privacy and confidentiality of our customers as well as to comply with applicable laws and regulations. Virtus may use or disclose information about our customers if we are required to do so by law, Virtus policy, pursuant to legal process or in response to a request from law enforcement authorities or other government officials.
Due to the nature of services provided by Virtus, the personal information the Client provides may be transmitted, used, stored and otherwise processed outside of the country where the Client submitted that information.
We retain current and future rights and title in all copyright, patents, trade marks or rights in databases, inventions or trade secrets, know-how, trade and business names, domain names, marks and devices (whether or not registered) and other proprietary rights relating to intellectual property and applications for any of those rights (where such applications can be made) capable of protection in any relevant country of the world including without limitation intellectual property rights in our knowledge, ideas, concepts, materials, programs, documentation, models, studies and methodologies and technology used, acquired or developed in the course of providing our services (“Intellectual Property Rights”).
You acknowledge that we are in the business of providing similar services to other clients and that we may be utilizing the Intellectual Property Rights in servicing other clients. Notwithstanding the foregoing, we will keep your confidential information confidential in accordance with these Terms of Business.
Use of Logos
Unless otherwise instructed by the Client, Virtus will use the Client’s logo, pictures, and other publicly available information to market the Client’s programs effectively or for use in Virtus’s business records.
Premiums paid by the Client to Virtus for remittance to insurers and Client premium refunds paid to Virtus by insurance companies for remittance to the Client are deposited into fiduciary accounts in accordance with applicable insurance laws until they are due to be paid to the insurance company or the Client. Subject to such laws and the applicable insurance company’s consent, where required, Virtus will retain the interest or investment income earned while such funds are on deposit in such accounts.
Each party agrees to waive its right to a trial by jury in any lawsuit or other legal proceeding against the other party and/or its parent(s), affiliates, or subsidiaries, in connection with, arising out of or relating to these Terms of Business or any services provided to the Client by Virtus or its affiliates. In any such action or legal proceeding, neither party shall name, as a defendant any individual employee, officer or director of the other party or its parent(s), affiliates or subsidiaries.
Governing Law and Entire Agreement
These Terms of Business, together with any Engagement Letter or other agreement signed by Virtus and Client, contain the entire understanding and agreement between the parties with respect to the subject matter described herein and supersedes and replaces all prior and contemporaneous agreements, whether written or oral, as to such subject matter. This Engagement Letter shall be governed by and construed in accordance with the laws of the State of Kansas without regard for its conflicts of law rules.
Electronic Delivery of Signatures
Agreements, acknowledgements or other documentation between Client and Virtus may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Insurance Proposals and Summaries
Virtus’s insurance documents containing proposals to bind coverage, summaries of coverages, and certificates of insurance placed are furnished as a matter of information for the Client’s convenience. These documents summarize proposed and placed policies and are not intended to reflect all the terms, conditions and exclusions of such policies. Moreover, the information contained in these documents reflects proposed or placed coverage as of the effective dates of the proposed policies or the date of the summaries and does not include subsequent changes. These documents are not themselves insurance policies and do not amend, alter or extend the coverages afforded by the proposed or placed policies. The insurance afforded by the proposed or placed policies is subject to all the terms, conditions and exclusions contained in such policies as they are issued by the insurers.
While Virtus only engages insurers who meet certain requirements as established by us from time to time, we make no representation, guarantee or warranty as to the solvency or ability of any insurer to pay any amounts for insurance claims or otherwise.
Foreign Account Tax Compliance Act (FATCA)
Client acknowledges that Virtus is required to act as a withholding agent on any FATCA eligible premium payments when Virtus or its U.S. licensed affiliates are responsible for the remittance of premium payments to insurers and in such instances, Virtus will be responsible for gathering and validating appropriate FATCA form(s) from carriers and intermediaries involved in FATCA eligible premium payments. Virtus will not act as withholding agent on premium remitted by you to any other party, including premiums paid directly to insurers, to non-US intermediaries, or to non-US Aon entities. Further, without your prior approval, Virtus will not knowingly place business with or through carriers or intermediaries that do not provide valid FATCA form(s).
If Client insists on using a carrier or intermediary that is unable or unwilling to provide FATCA forms, Client will be responsible for paying any additional sums so that the mandated FATCA withholdings can be made while concurrently fulfilling Client’s obligation to remit the full premium amounts necessary to effect coverage.
Virtus will provide Virtus’s US W-9 form(s) to Client upon request. Virtus will not be responsible for issues arising from Virtus withholding 30% of premium payments in connection with its FATCA obligations. Client agrees to work with Virtus to provide information required to meet FATCA obligations.
Virtus does not and cannot guarantee the availability or price of insurance for the Client’s risks and is not responsible for fluctuation in the premiums charged by insurers. Virtus will rely on the Client to review and approve any calculation or estimation of premium. Virtus is not responsible for any loss occasioned as a result of Virtus’s calculation or estimation of premium and statutory charges that may apply to the Client’s insurance.
Selecting Sums and Limits
You are responsible for selecting and checking sums insured, contract terms and contract limits. You must ensure that these are sufficient to meet your requirements. You must let us know in writing if you would like to increase or modify your insurance cover in any way.
Mutual Limited Waiver of Liability
No parties to these Terms of Business shall be liable to the other for any indirect, incidental, special, consequential, exemplary, punitive or reliance damages (including, without limitation, lost or anticipated revenues, lost business opportunities or lost sales or profits, whether or not either party has been advised of the likelihood of such damages) or for any attorneys’ fees (whether incurred in a dispute or an action against the other, or as alleged damages that any party incurred in any insurance coverage dispute, or otherwise) arising out of services provided by Virtus or its affiliates.
Standard Terms and Conditions
Virtus assumes no responsibility for the adequacy or effectiveness of programs or coverages that we did not implement or place. Any loss control services, summaries and/or surveys performed by Virtus are advisory in nature and are for the sole purpose of assisting the Client in your development of your risk control and safety procedures. Such services and/ or surveys are limited in scope and do not constitute a safety inspection nor verify that the Client is in compliance with federal, state and local laws, statutes, ordinances, recommendations, regulations, consensus codes or other standards.
Our services may be terminated either by us or you upon the giving 30 days’ notice in writing to the other or as otherwise agreed. In the event our services are terminated by you, we will be entitled to receive any and all fees or brokerage payable (whether or not we have received the same) in relation to contracts placed by us.
Limitation of Liability
Virtus’s liability to the Client, in total, for the duration of our business relationship for any and all damages, costs, and expenses (including but not limited to attorneys’ fees), whether based on contract, tort (including negligence), or otherwise, in connection with or related to our services (including a failure to provide a service) or any other service that we provide shall be limited to a total aggregate amount of US $1,000,000 (“Liability Limitation”), to the fullest extent permitted by law.
This Liability Limitation shall apply to the Client and extend to the Client’s parent(s), affiliates, subsidiaries, and their respective directors, officers, employees and agents (hereinafter, each a “Client Liability Member” and together, “Client Liability Group”) wherever located that seek to assert claims against Virtus, and its parent(s), affiliates, subsidiaries and their respective directors, officers, employees and agents (each a “Virtus Group Member” and together, “Virtus Group”). Nothing in this Liability Limitation section implies that any Virtus Group Member owes or accepts any duty or responsibility to any Client Liability Member.
If the Client or any Client Liability Member asserts any claims or makes any demands against Virtus or any Virtus Group Member for a total amount in excess of this Liability Limitation, then the Client or any Client Liability Member agrees to indemnify Virtus for any and all liabilities, costs, damages and expenses, including attorneys' fees, incurred by Virtus or any Virtus Group Member that exceeds this Liability Limitation.
We are not liable for failure or delay where it is due to causes outside our reasonable control.