Terms and Conditions
Last Modified: July 6, 2020
Please read this Authorization carefully. By clicking a button or checking a box marked “I Agree” (or something similar), Funeral Home acknowledges that they have read, understand and agree to be bound by each and every provision set forth herein, and you signify that you have the authority to enter into this Agreement on behalf of Funeral Home. If Funeral Home does not understand any aspect of this Authorization, its terms and conditions, Funeral Home is advised to consult with their own legal counsel for advice.
Funeral Home may revoke this Authorization Agreement at any time as detailed below. The Internal Revenue Service does not require your consent to any provision of this document other than the certifications required to avoid backup withholding as noted in this Agreement.
This Funeral Home Authorization Agreement (“Agreement”) is entered into as of the date you click a button indicating your agreement with the terms of this Agreement between Funeral Home (as noted above, known as “Funeral Home” or “Participant”) and Homesteaders Life Company, an Iowa Corporation, and any and all of its subsidiaries and affiliates (“Homesteaders”). Each of Funeral Home and Homesteaders are referred to herein as a “Party” and collectively referred to as the “Parties.”
AUTHORIZATIONS EXTENDED – Products chosen may be changed at any time and any changes will be indicated on the funeral home file record provided with each policy. Execution of this agreement authorizes Homesteaders Life Company and its agents to act on behalf of the signing Funeral Home. Individual agents may act without a specific appointment form being executed following execution of this Authorization Agreement.
Along with the authorizations extended on the front of this Agreement, by signing this Agreement, Funeral Home agrees that the following authorizations are also extended.
- Products chosen may be changed at any time and any changes will be indicated on the Funeral Home file record provided with each policy. The products that do not qualify for the loyalty programs offered by Homesteaders can be found on myHomesteaders.com.
- To utilize the name of Funeral Home, including any of its branches, to create a market interest in life insurance and annuity products underwritten by Homesteaders to defray future funeral costs and final expenses.
- To execute on behalf of the Funeral Home binding Prearranged Funeral Agreements. The negotiation of a Prearranged Funeral Agreement shall be an activity undertaken by the agent as a representative of the Funeral Home and not as a representative of Homesteaders. Prior to taking any actions pursuant to this authorization, the agent shall contact the Funeral Home and secure the necessary information concerning pricing of merchandise and services, and specific forms or agreements in use by the Funeral Home. The agent’s authority is limited to only pricing, merchandise and services authorized by the funeral home as agreed by the funeral home and the agent, which may be by separate agreement.
- To accept on behalf of the Funeral Home, the ownership of life insurance and annuity products underwritten by Homesteaders to fund Prearranged Funeral Agreements and to irrevocably assign ownership of such policies to the Homesteaders Life Company Funeral Assurance Trust.
The agent and the Funeral Home shall also obtain all necessary permits and licenses as may be required by applicable state and local statutes. If the authority of the life insurance agent is restricted by statute, the life insurance agent shall be authorized to act on behalf of the Funeral Home only to the extent authorized and allowed by law.
Nothing contained in this Authorization Agreement shall be construed to create a guarantee by Homesteaders, or by licensed life insurance agents, to provide funeral services and/or merchandise under any Prearranged Funeral Agreement.
This Authorization Agreement shall be continuing in nature until revoked by notice by the Funeral Home to both the agent and to Homesteaders, in writing, by ordinary mail. Homesteaders and its licensed life insurance agent shall be entitled to terminate this authorization by written notice to the Funeral Home. The termination provisions as to any of the parties shall be effective five (5) business days after mailing.
USE OF MyHomesteaders
Funeral Home authorizes the Authorized User referenced on the previous page to be granted user credentials to access Funeral Home’s myHomesteaders system, also known as the “Funeral Home Dashboard.”
Revocation of Access. Either Party may revoke this authorization at any time for any reason or no reason at all. Funeral Home may revoke access by providing written Notice and Homesteaders may revoke access at its discretion, with or without notice. Access to the myHomesteaders dashboard will be revoked by Homesteaders when Homesteaders becomes aware that Funeral Home has changed ownership, in whole or in part, or believes that Funeral Home may have changed ownership.
Data Ownership, Intellectual Property. Funeral Home acknowledges that as between Homesteaders and Funeral Home, Homesteaders owns all Data delivered to Funeral Home regardless of the means transmitted, this includes Funeral Home’s myHomesteaders system. Data shall include all information, including but not limited to, names, addresses, telephone numbers, email addresses, information about goods and services that correspond to pre-need contracts, information about any insurance policy or certificate assigned to Funeral Home or that corresponds to a pre-need contract, reports, lists, formulae, prices, algorithms, code, applets, APIs, trademarks, copyrights, and all other information without respect to form (collectively, “Homesteaders’ Data”).
Data Transmission. Funeral Home agrees to notify Homesteaders of any changes in its Authorized User that is to receive the data. Notification will be made in writing to Homesteaders.
Non-Disclosure and Confidentiality. Funeral Home agrees to treat all Homesteaders Data provided as confidential information (“Confidential Information”) and will not, without the prior written approval of Homesteaders, use, publish, disclose, copyright or authorize anyone else to use, publish, disclose or copyright, any Confidential Information during the Term of this Authorization, regardless of the form of the Confidential Information; provided, however, that Funeral Home may disclose the Confidential Information to (i) those employees, Authorized Users, officers, technical personnel, attorneys, and accountants who have a need to know and whose services are required and who shall have, prior to the disclosure of the Confidential Information, agreed to comply with the terms of these confidentiality provisions; (ii) any applicable legal or regulatory authority if so required; or (ii) with the consent of the disclosing party. Funeral Home agrees to provide security for the Confidential Information it receives in a manner reasonably sufficient to prevent a breach of the confidentiality required by this paragraph.
Funeral Home agrees that the security it will provide for the data shall be consistent with the level of security provided by Homesteaders. Should a breach of data occur, Funeral Home will notify Homesteaders of said breach within 24 hours. Funeral Home will cooperate with Homesteaders regarding any breach of data including, but not limited to reporting of the breach, notification to individuals, providing information regarding the breach, and any other items necessary under applicable State or Federal laws or as may be required by Homesteaders.
Funeral Home agrees to notify Authorized User of this Non-Disclosure and Confidentiality paragraph and understands Authorized User will be held to the same standards as Funeral Home. Funeral Home understands and agrees that Funeral Home is responsible for the actions of Authorized User under this paragraph and will indemnify Homesteaders for any violation of this paragraph by Authorized User.
Disclosure As Required By Law, Order or Injunction. In the event Funeral Home or Authorized User receives a subpoena or other order issued by a court or governmental agency or other regulatory authority, or is otherwise required by law to disclose Confidential Information, Funeral Home or Authorized User shall provide prompt and reasonable notice of any such order, subpoena or required disclosure to Homesteaders prior to disclosure so that Homesteaders has the opportunity to obtain a protective order or other relief. In the event a protective order or other relief is not obtained, Funeral Home or Authorized User will furnish only that portion of the Confidential Information that is legally required.
Proprietary Rights. All data received, and all copies thereof, shall be and remain the sole and exclusive property of Homesteaders. Upon request by Homesteaders, Funeral Home agrees to deliver immediately to Homesteaders the originals and all copies of any of the foregoing, including those held by Authorized User. The rights and obligations under this section shall survive any such return of such information and materials. Upon request by Homesteaders, Funeral Home agrees to destroy all data, including any back- ups, still in its possession and to provide Homesteaders certification of such destruction.
Notice. All notices or other communications shall be in writing and mailed to Homesteaders at ATTENTION SALES ADMINISTRATION, P.O. Box 1756, Des Moines, IA 50306-1756 and to Funeral Home or Authorized User at their respective addresses identified in this document.
Jurisdiction and Venue. Any action, claims, dispute or proceeding arising from or relating to this Authorization shall be instituted and prosecuted in the courts located in Polk County, Iowa and each Party submits to the jurisdiction and venue of such courts and waives any defense relating to such personal jurisdiction and venue. This Authorization shall be governed by law of the state of Iowa.
Indemnification. Homesteaders and its agents, directors, employees, affiliates, and members shall not be liable for any loss or liability incurred in connection with any act performed, or failed to be performed, in accordance with the terms of this Authorization, except for any loss or liability incurred due to fraud or willful misconduct by Homesteaders or someone acting with authority on its behalf. Homesteaders will not be liable to Funeral Home for any punitive, indirect, incidental, or consequential damages of any nature arising from this Authorization. Funeral Home shall, to the fullest extent permitted by law, indemnify and hold harmless Homesteaders and Homesteaders’ agents, directors, employees, affiliates and members from and against any and all liability, loss, cost, expense, or damage incurred or sustained due to the fraud, willful misconduct or negligence of Funeral Home or its Authorized User. Funeral Home shall defend and hold Homesteaders harmless from all claims, liabilities, damages, or judgments involving a third party, including Homesteaders’ costs and attorney fees, which arise as a result of Funeral Home’s failure to meet any of its obligations under this Authorization.
Assignment. Homesteaders may assign its rights and obligations under this Authorization to any subsidiary, affiliate, or successor by merger or consolidation without notice to the Funeral Home, or to any other entity after 30 days’ written notice. The Funeral Home may not assign this Authorization without Homesteaders’ prior written consent of Homesteaders.
Waiver. The failure of a party to insist on full compliance with any provision of this Agreement in a particular instance shall not preclude it from requiring full compliance thereafter.
CERTIFICATION BY FUNERAL HOME
Under penalties of perjury, I certify that:
(1) The number provided is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified Funeral Home that it is no longer subject to backup withholding, and (3) I am a U.S. person (including a U.S. resident alien).
eFUNERAL TERMS AND CONDITIONS
WHEREAS, Homesteaders’ subsidiary, eFuneral Solutions, LLC (“EFS”) owns, develops and offers a certain software platform and hosting service to allow funeral homes to transact the business of pre-need or pre-arranged funeral plans digitally through an internet presence; and
WHEREAS, Participant (as defined below) desires to utilize EFS’s software platform and hosting services to facilitate digital pre-arrangement and/or at-need funeral plan transactions, subject to the terms and conditions set forth in this Agreement; and
WHEREAS, EFS and Participant wish to set out the terms and conditions between the parties in order to commence EFS’ Web Hosting Services to the Participant.EFS AGREEMENT
NOW, THEREFORE, Provider (as defined below) and Participant agree as follows:
- 1. Definitions:
- 1.1. “Content” refers to all text, pictures, sound, graphics, video, links, and other data stored by the Participant on our Server computers.
- 1.2. “Participant” refers to Funeral Home, its agents and authorized representatives which are also referred to by using the terms “they”, “them”, “their” and “theirs”.
- 1.3. “Provider” refers to EFS, its agents and authorized representatives which are also referred to by using the terms “we”, “us”, “our” and “ours”.
- 1.4. “Server computers” are computers owned, leased, or rented by the Provider for use by the Participant to host its own website for the purposes set forth in this EFS Agreement.
- 1.5. “Web Hosting Services” refers to the services being provided by Provider which allow Participant to make its own website, or a webpage provided by Provider, accessible via the World Wide Web for the purposes set forth in this EFS Agreement.
- 2. Website Hosting. EFS hereby authorizes Participant to utilize its Web Hosting Services to transact the business of pre-arranged funeral planning (“Services”) and Participant hereby acknowledges and agrees to utilize the Web Hosting Services for said purposes, in each instance in the manner specifically set forth herein.
- 3. Term and Termination. The term of this EFS Agreement will be for one year commencing on the Effective Date and will be automatically renewed for successive one-year terms, unless either party gives notice to the other party of termination at least thirty (30) days prior to the end of the then-current term. Notwithstanding the foregoing, either party may terminate this EFS Agreement (i) with or without cause upon thirty (30) days prior written notice to the other party, or (ii) immediately upon the other party’s breach of the terms or conditions of this EFS Agreement. Termination or expiration of this EFS Agreement will not relieve any party of any obligations or liabilities that are expressly indicated to survive termination or expiration of this EFS Agreement and will be without prejudice to any rights that will have accrued to the benefit of any party prior to such termination or expiration. Sections 4, 5, 6, 7, 10, 11, 13, 14 and 17 will survive the expiration or termination of this EFS Agreement. Further, any termination of this EFS Agreement will not affect the rights of Consumers that may have effectuated Transactions through the Participant eFuneral Page.
- 4. Intellectual Property.
- (a) No Transfer of Intellectual Property. Any technology, system, application tool, process, software, module, standard software application, know-how, methodology, copyright, trade secret, patent, trademark or other intellectual property owned or used by EFS as of the Effective Date of this EFS Agreement and any such intellectual property owned, acquired, developed or used by or for the benefit of EFS on or after the Effective Date of this EFS Agreement, and including, without limitation, the Web Hosting Services, and any and all data generated from use of the Participant eFuneral Page (collectively, “EFS Proprietary Rights”) will, to such extent, be and remain the exclusive property of EFS. Except as provided herein, Participant will have no rights, title or interests in any EFS Proprietary Rights as a result of this EFS Agreement and in no event will Participant obtain any source code from EFS. All use of EFS Proprietary Rights, including, without limitation, all use of the Participant eFuneral Page, will inure to the benefit of EFS.
- (b) Permission to Use Consumer Personally Identifiable Information. As between EFS and Participant, EFS will own any and all personally identifiable information that is provided to EFS regarding Consumers, regardless of how provided (“Consumer PII”). EFS may disclose the following Consumer PII to Participant: i) at the time a Consumer completes a Transaction through the Participant eFuneral Page; or ii) at the time a Consumer fails to complete a Transaction so Participant may contact Consumer to continue discussions regarding the Transaction: Consumer name, address, phone number and e-mail address. Participant may use Consumer PII only for the following purposes: to provide at-need and pre-need funeral arrangements, to provide on-going marketing for the purpose of pre-need funeral arrangements, as agreed to by Consumer and as may be required by any applicable State or Federal law, or any other business purposes the parties may hereafter agree to in writing. Consumer PII is “Confidential Information” as that term is defined in Section 5 below and Participant shall treat Consumer PII in a manner consistent with that section. Furthermore, Participant will modify or amend its privacy policies as necessary to share Consumer PII with EFS.
- (a) Trademarks. Neither party will have the right to use the trademarks, service marks, trade dress, logos and trade names (collectively, “Trademarks”) of the other party except as expressly authorized in this Section. During the term of this EFS Agreement, each party hereby grants to the other a nonexclusive, non‑assignable license to use the other’s Trademarks solely and exclusively for the purposes described in this EFS Agreement or any other agreement. In exercising this license, each party will comply with the instructions of the other as to the form and manner in which the party’s Trademarks will be used, including any direction as to quality, style and graphic integrity, and a party will not make any addition to, deletion from or other modification to the other’s Trademarks. Prior to distributing any promotional or other materials (including website content) bearing a party’s Trademarks, the other party will first provide the party a reasonable opportunity to review and approve the presentation of its Trademarks. Each party’s use of the Trademarks will inure to the other’s benefit.
- 5. Confidentiality. In the course of their activities pursuant to this EFS Agreement, the parties anticipate that EFS may disclose Confidential Information to Participant. The parties wish to protect such Confidential Information in accordance with this Section.
- (a) For purposes hereof, “Confidential Information” means any trade secrets; any confidential, proprietary or competitively sensitive information, knowledge, designs, data, or know-how, including Consumer PII; or any other information considered reasonably as “confidential” that EFS discloses to Participant. Confidential Information does not include information that (i) is or hereafter becomes generally available to the public other than as a result of a disclosure by Participant (except that Consumer PII shall be considered Confidential Information notwithstanding such general availability), (ii) was already known to Participant prior to receipt from EFS as evidenced by prior written documents in its possession not subject to an existing confidentiality obligation to EFS, (iii) is disclosed to Participant on a non‑confidential basis by a person who is not in default of any confidentiality obligation to EFS, or (iv) is developed by or on behalf of Participant without reliance on Confidential received hereunder.
- (b) Participant will (i) use such Confidential Information solely in connection with the activities contemplated by this EFS Agreement and (ii) not disclose such Confidential Information to any person other than those of its agents and representatives who need to know such Confidential Information in order to accomplish the objectives for which it was disclosed. Participant will inform such agents and representatives of the confidential nature of the information and cause them to observe the limitations on the use thereof. Notwithstanding the foregoing, Participant may disclose Confidential Information to the extent necessary to comply with applicable laws or regulations or with an order issued by a court or regulatory body with competent jurisdiction; provided that, in connection with such disclosure, Participant notifies EFS in advance of such disclosure and uses commercially reasonable efforts to obtain confidential treatment or an appropriate protective order, to the extent available, with respect to such Confidential Information.
- (c) Upon request of EFS, Participant will promptly redeliver to EFS all Confidential Information provided to Participant in tangible form, and Participant will not retain any copies, extracts or other reproductions, in whole or in part, of such Confidential Information. Notwithstanding the foregoing, legal counsel to Participant will be permitted to retain in its files one copy of all Confidential Information to evidence the scope of and to enforce the party’s obligation of confidentiality under this Section.
- 6. Data Security. EFS maintains security of Consumer PII at, or above, industry standards. Participant agrees that the security it will provide for any Consumer PII shall be consistent with the level of security provided by EFS. Should a breach of Consumer PII occur, Participant will within twenty-four (24) hours notify EFS of said breach. Participant will cooperate with EFS regarding any breach of Consumer PII including, but not limited to reporting of the breach, notification to individuals, providing information regarding the breach, and any other items necessary under applicable State or Federal laws or as may be required by EFS, regulators or law enforcement. Participant shall, to the fullest extent permitted by law, indemnify and hold harmless EFS and EFS’ parent company, agents, directors, employees, owners, affiliates and members from and against any and all liability, loss, cost, expense, or damage incurred or sustained due to the fraud, willful misconduct or negligence of Participant under this Paragraph. Participant shall defend and hold EFS and EFS’ parent company, agents, directors, employees, owners, affiliates and members harmless from all claims, liabilities, damages, or judgments involving a third party, including EFS’ costs and attorney fees, which arise as a result of Participant’s failure to meet any of its obligations under this Paragraph.
- 8. Disclaimer of Warranties. EFS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EFS DOES NOT REPRESENT OR WARRANT THAT THE PARTICIPANT EFUNERAL PAGE WILL OPERATE WITHOUT INTERRUPTION. THE PARTICIPANT EFUNERAL PAGE IS PROVIDED “AS IS” AND “AS AVAILABLE.” PARTICIPANT ACKNOWLEDGES THAT PARTICIPANT HAS NOT ENTERED INTO THIS EFS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
- 9. Remedies. The parties agree that it would be impossible or inadequate to measure and calculate damages from breach of the provisions set forth in this EFS Agreement. Accordingly, the parties agree that the non-breaching party will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach of this Agreement and to specific performance of any such provision of this EFS Agreement.
- 10. Limitation of Liability. IN NO EVENT WILL EFS, ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS OR ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OWNERS OR AGENTS, BE LIABLE TO PARTICIPANT (NOR TO ANY THIRD PARTY CLAIMING THROUGH PARTICIPANT) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING LOSS OF PROFITS, ANTICIPATED PROFITS, REVENUES, ANTICIPATED SAVINGS, OR GOODWILL OR BUSINESS OPPORTUNITY) ARISING OUT OF OR IN CONNECTION WITH THIS EFS AGREEMENT. IN NO EVENT WILL EFS, ITS LICENSORS’, ITS SERVICE PROVIDERS’ OR ITS OR THEIR DIRECTORS’, OFFICERS’, EMPLOYEES’, OR AGENTS’ COMBINED AGGREGATE LIABILITY HEREUNDER TO PARTICIPANT OR ANY THIRD PARTY CLAIMING THROUGH PARTICIPANT FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS EFS AGREEMENT EXCEED $10.00. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF AN AUTHORIZED REPRESENTATIVE OF PARTICIPANT RELYING ON THIS LIMITATION OF LIABILITY OR ITS LICENSORS OR SERVICE PROVIDERS HAD BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHOUT REGARD TO THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
- 11. Compliance with Laws. At all times, each party’s performance under this EFS Agreement will comply with all applicable laws, rules and regulations, including all applicable laws, rules, regulations and best practices concerning data privacy and security. In the event either party breaches any of its obligations under this Section, the other party may take any action available under law or contract.
- 12. Expenses. Each party will be responsible for any expenses incurred by it in connection with the performance of its obligations under this EFS Agreement.
- 13. Governing Law. This EFS Agreement will be governed by the laws of the State of Iowa without reference to its rules of conflicts or choice of laws. All disputes arising from or relating to this EFS Agreement will be within the exclusive jurisdiction of the state and/or federal courts located within the State of Iowa and the parties hereby consent to such exclusive jurisdiction and waive objections to venue therein.
- 14. Restrictions on use. Participant will not, directly or indirectly, (i) redistribute for commercial purposes, reverse engineer, disassemble, transfer, distribute or otherwise commercially exploit anything with respect to the Web Hosting Services; (ii) modify or make derivative works based upon the Web Hosting Services; (iii) access the Web Hosting Services in order to build a competitive product or service; (iv) contract with any other person or entity to design or operate similar web hosting or marketing services; or (v) use the Web Hosting Services in any manner inconsistent with the terms and conditions of this EFS Agreement. Additionally, Participant shall not use the Web Hosting Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, ﬁles, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Web Hosting Services or its related data, systems or networks.
- 15. Binding Effect. Participant agrees that this EFS Agreement shall be binding upon their respective directors, officers, employees, owners, agents, or any other person or entity it authorizes to use the services contemplated herein without further agreement or consent.
- 16. Entire Agreement; Amendment. This EFS Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all previous negotiations, agreements and commitments with respect thereto. This EFS Agreement will not be amended or modified in any manner except by a written instrument signed by duly authorized officers or representatives of each of the parties hereto.
- 17. Assignment. Participant will have no right to assign any of its rights or obligations under this EFS Agreement without the prior written consent of EFS.