When you use any Bold Penguin Service these are the Terms of Service.
Privacy Policy
Last updated: February 29, 2024
YOUR USE OF ANY AND EVERY BOLD PENGUIN SERVICE IS SUBJECT TO THESE TERMS OF SERVICE (THE “CUSTOMER TERMS”). TO HAVE A COMMERICAL RELATIONSHIP WITH BOLD PENGUIN, INC. OR BOLD PENGUIN COMPANY, LLC (DBA COMMERCIAL INSURANCE CENTER) OR ANY BOLD PENGUIN SUBSIDIARY (COLLECTIVELY, “BOLD PENGUIN”, "WE", "US", AND "OUR"), YOU MUST AGREE TO BE BOUND BY THESE CUSTOMER TERMS AND THE STANDARDS OF CONDUCT (COLLECTIVELY, “CUSTOMER AGREEMENT”). IF YOU DO NOT ACCEPT THIS CUSTOMER AGREEMENT IN FULL, DO NOT USE ANY BOLD PENGUIN SERVICE, AS YOUR USE OF ANY BOLD PENGUIN SERVICE IS DEEMED TO BE YOUR ACCEPTANCE OF THIS CUSTOMER AGREEMENT.
The Bold Penguin Privacy Policy (available here) is incorporated herein by reference. The Customer Agreement governs your use of the Additional Services (defined below), however accessed, including via an internet browser, smartphone, tablet, or other internet connected device.
By executing the Customer Agreement with Bold Penguin on behalf of an agency or other legal entity, you confirm that (a) you are duly authorized to represent the legal entity and any affiliates of the legal entity who will be using our service(s), (b) you accept the terms of the Customer Agreement on behalf of such legal entity and affiliates, and (c) any references to “you” in the Agreement refer to such legal entity, affiliates and all of the employees, consultants and agents of those respective parties. You are responsible for all activity that occurs under your account on or through our services.
1.1 Additional Services. The Customer Agreement may include additional services that you subscribe to receive directly from or through the Bold Penguin website (“Additional Services”). Some of these Additional Services have specific additional terms that apply to your use of those Additional Services (the “Supplemental Terms”), and those Supplemental Terms become part of the Customer Agreement. In the event Supplemental Terms directly conflict with any term in the Customer Agreement, the Supplemental Terms will apply to your use of the Additional Service instead of the terms contained in the Customer Agreement.
1.2. Modification of Agreement. Bold Penguin may modify or update the Customer Agreement at any time. In the event Bold Penguin determines it is necessary to make a material modification to the Customer Agreement, you will be notified of such change and may be asked to affirmatively agree to such modified version of the Customer Agreement. Note, however, that your use of any of Additional Services after modifications to the Customer Agreement take effect constitutes your binding acceptance of such changes. You may review the most current version of the Customer Terms of Service here.
1.3. Exclusive Remedy. If you are dissatisfied with the terms of the Customer Agreement or any modifications to the Customer Agreement or any Supplemental Terms, you agree that your sole and exclusive remedy is to terminate your subscription to the Additional Service and discontinue use or terminate the Customer Agreement, as applicable.
2.1 Term. The Customer Agreement commences on the date you first accept it and continues for as long as you have an active subscription for any Additional Service or the Customer Agreement has been terminated as permitted below (the “Term”).
2.2 Term of Additional Services. The term for Additional Services shall be and shall renew as specified in the applicable Supplemental Terms, and subscriptions will automatically renew for additional like periods, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the expiring term. The pricing during any automatic renewal term, will be the same as that during the immediately prior term unless we have given you written notice of a pricing increase at least thirty (30) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
2.3 Termination. A party may terminate the Customer Agreement (i) thirty (30) days after providing written notice to the other party of a material breach of its obligations under the Customer Agreement if such breach remains uncured at the expiration of such 30-day period, (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) upon ten (10) days’ written notice to the other party if the other party is in material breach of the Customer Agreement more than two (2) times notwithstanding any cure of such breaches. Termination by either party of the Customer Agreement shall automatically terminate all Additional Services.
2.4 Refund or Payment upon Termination. If you terminate the Customer Agreement in accordance with Section 2.3 (Termination), you will not be due any refund of any prepaid fees for any Additional Services. If we terminate the Customer Agreement in accordance with Section 2.3(ii), we will provide you a prorated refund of any prepaid subscription fees for Additional Services. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination.
2.5 Suspension and Termination of Additional Services. Notwithstanding Section 2.3, Bold Penguin may suspend your access to any Additional Services and terminate the Customer Agreement at any time in the event you materially breach the Customer Agreement (including failure to pay for any Additional Service, which may occur if your method of payment on file cannot be charged) and you do not cure such breach within 30 days of us providing you with written notice of such breach (including notice by email), or earlier if Supplemental Terms provide otherwise. Notwithstanding the foregoing, Bold Penguin may immediately suspend or terminate the Customer Agreement and/or your access to any Additional Services without liability if you are in violation of Sections 5.1 (Usage Restrictions), 8.2 (Security Breach), or 13.1 (Export Compliance) of this Customer Agreement, as determined by Bold Penguin in its sole discretion. Notice via email from Bold Penguin will be sent to you at the email address you have provided to us, which you are responsible to keep updated.
2.6 Your Services Data Portability and Deletion. After the effective date of termination of the Customer Agreement, we will have no obligation to maintain or provide your data (“Services Data”), and may, in our sole discretion, delete or destroy all copies of your Services Data in our systems or otherwise in our possession or control, unless legally prohibited.
(Section 3 is not applicable if you are only Contributing Prospects to the Exchange)
3.1 Fees. You will pay all fees as specified in order forms for all Additional Services. Except as otherwise specified herein or in the Supplemental Terms or on an applicable order form, (i) fees are based on the Additional Service purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
3.2 Automatic Payments. If you provide to us authorization for ACH draw from your bank account or your credit card information (“Payment Method on File”), you expressly (i) authorize us to access your Payment Method on File; (ii) authorize us to charge such Payment Method on File for all Additional Services listed in any order form(s) for the initial subscription term and any renewal subscription term(s) as applicable; (iii) agree to ensure that the Payment Method on File is current and valid; and (iv) agree to promptly update the information if the Payment Method on File changes or expires.
3.3 Invoicing and Payment. If we agree to permit you to pay subject to invoice rather than automatic payments, we will invoice you in advance for the Additional Services in accordance with the relevant order form, and invoiced charges are due upon receipt of the invoice. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
3.4 Overdue Charges. If any undisputed amount is not received by us by the due date, including because your Payment Method on File could not be charged, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; (b) we may condition future subscription renewals and payment terms shorter than those specified in Section 3.3 (Invoicing and Payment), if applicable; and (c) we may require you to pay any collections or legal fees we incur to collect payment of the corresponding undisputed invoiced amount.
3.5 Suspension of Service and Acceleration. If any undisputed amount you owe for any Additional Service with us is thirty (30) or more days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend your Additional Services until such amounts are paid in full. We will give you at least ten (10) days’ prior notice, in accordance with Section 15.1 (Manner of Giving Notice), before suspending your Additional Services.
3.6 Payment Disputes. If you dispute any amounts due to us, you shall promptly provide us with notice of the disputed amounts along with supporting documentation within 30 days of the date the disputed amount is charged to you, and the parties both agree to cooperate diligently to resolve such dispute in good faith. We will not exercise our rights under Section 3.4 (Overdue Charges) or 3.5 (Suspension of Service and Acceleration) provided: (i) you dispute the applicable charges timely, reasonably and in good faith; (ii) are cooperating diligently to resolve the dispute; and (iii) you remit timely payment for any undisputed amounts.
3.7 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 3.7, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property, and employees.
4.1 Reservation of Rights. Subject to the limited rights expressly granted to you under the Customer Agreement or any Supplemental Terms, we reserve all our rights, title, and interest in and to (a) the proprietary Bold Penguin Additional Services; (b) all hosted software products and related documentation included in the Additional Services and all modifications and/or enhancements to any of the foregoing (collectively, the “Software”); (c) all intellectual property rights in (a) and (b), and (d) all operational and performance data related to your use of any Additional Services, including, without limitation, which features are used, time spent using the Additional Service(s), and similar data and metadata created in connection with the Additional Service, together with analysis of such operational and performance data and derived findings, correlations, discoveries, and other insights or learnings derived by Bold Penguin from such analysis (collectively, “Performance Data”). You reserve all your rights, title and interest in your data, provided that we may use your data to create generic reports and as provided in Section 4.2 below. No rights are granted to you hereunder other than as expressly set forth herein.
4.2 Our Rights to Use Your Performance Data. Bold Penguin may collect, use, and disclose all Performance Data for its business purposes (such as software use optimization and product marketing), including by combining and analyzing Performance Data with other data, and Bold Penguin shall be permitted to share your Performance Data in aggregated or de-identified form as needed to perform any of the Additional Services. Bold Penguin shall not disclose Performance Data to any non-affiliated third party unless such Performance Data has been anonymized or de-identified, or is disclosed in aggregated form, in all cases such that Performance Data does not reveal your identity, any of your confidential information, or any personally identifiable information that belongs to you or your employees.
4.3 Feedback. To the extent you provide any suggestions, enhancement requests, recommendations, comments, or other feedback (“Feedback”) about any Additional Service(s) to Bold Penguin, the Feedback will not be considered confidential or proprietary, and Bold Penguin may use and include any such Feedback to improve the Additional Service(s), or for any other purpose. Accordingly, if you provide Feedback, you agree that Bold Penguin shall own all such Feedback, and Bold Penguin and its licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Additional Service(s) or other related technologies, and you hereby assign all rights in such Feedback to Bold Penguin.
4.4 Deliverables. From time to time during the Term, Bold Penguin may develop, author or prepare custom documents, designs, computer programs, computer documentation and other tangible materials (“Deliverables”) for you pursuant to agreement between you and Bold Penguin. Bold Penguin shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use only during the Term. Bold Penguin may reuse any Deliverables, provided that such use does not reveal your identity, your confidential information or any personally identifiable information that belongs to you or your employees.
5.1 Usage Restrictions. You agree not to: (a) make any Additional Service available to, or use any Additional Service for the benefit of, anyone other than you or individuals who are authorized by your to use the Additional Services; (b) sell, resell, license, sublicense, distribute, rent or lease any Additional Service; (c) use an Additional Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use an Additional Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and trojan horses (“Malicious Code”); (e) interfere with or disrupt the integrity or performance of any Additional Service or third-party data contained therein; (f) attempt to gain unauthorized access to any Additional Service or its related systems or networks; (g) permit direct or indirect access to or use of any Additional Service in a way that circumvents a contractual usage limit, (h) copy an Additional Service or any part, feature, function or user interface thereof; (i) frame or mirror any part of any Additional Service; (j) monitor the availability, performance or functionality of any Additional Services, or access the Additional Services for any other benchmarking or competitive purposes; (k) access any Additional Service in order to build a competitive product or service; (l) reverse engineer any Additional Service (to the extent such restriction is permitted by law); (m) circumvent or attempt to circumvent any restrictions on access to or use of the Additional Services; or (n) develop or use an API Integration in a manner that results in the violation of any third party’s intellectual property rights.
5.2 Privacy. Our Privacy Policy describes the collection, use, and sharing of certain information that may be provided in connection with your use of the Additional Services. By using the Additional Services, you acknowledge that your Services Data will be processed in accordance with our Privacy Notice, the Customer Agreement, the Supplemental Terms, and, if applicable, the data processing agreement entered into by you and us and may be processed in a country where it was collected, as well as in countries where privacy laws may be less stringent, including the United States. By using the Additional Services or submitting your Services Data through the Additional Services, you expressly consent to such processes. You represent that you obtained the required consents and provided appropriate notices for the collection and use of your Services Data by us in accordance with the Customer Agreement and the Supplemental Terms for any Additional Services.
5.4 California Consumer Privacy Act. All capitalized but undefined terms in this section 5.4 (including its sub-sections) are defined in the California Consumer Privacy Act, including its implementing regulations (collectively, “CCPA”). We may provide certain services in which we Process Personal Information of California Consumers on your behalf as a Service Provider to you. When we Process such Personal Information on your behalf, the following provisions apply to those Processing activities:
5.4.2 Compliance with CCPA. We will Process the Personal Information in compliance with applicable provisions of the CCPA and provide the same level of privacy protection as required by businesses under the CCPA. You will provide the Personal Information to us in compliance with the CCPA and you will not request that we take any action that would cause us or you to violate the CCPA.
5.4.3 Consumer Privacy Requests. If you receive a request from a California Consumer to exercise a right afforded them under the CCPA with regard to Personal Information we Process on your behalf (a “Consumer Request”), you may request, and we will provide at your cost, reasonable assistance in fulfilling that Consumer Request. Our obligation to provide assistance is contingent upon you providing all information reasonably necessary to facilitate our assistance. If we receive a Consumer Request directly from a California Consumer, we may choose to either (i) accept the Consumer Request and forward it to you or (ii) instruct the California Consumer to make the Consumer Request directly to you.
5.4.4 Ensuring Compliance. You may take reasonable and appropriate steps, at your cost and after providing us at least ten (10) business days’ advance written notice, to ensure that we Process the Personal Information on your behalf in compliance with the CCPA and to stop and/or remediate noncompliant use of such Personal Information by us. We will notify you if we determine we can no longer Process the Personal Information on your behalf in compliance with the CCPA.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes the Additional Services; and Confidential Information of each party includes the terms and conditions of this Customer Agreement, the Supplemental Terms, and all subscription order form(s) for our Additional Services (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party, which can be demonstrated by documented evidence.
6.2 Protection of Confidential Information. The Receiving Party will (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care), (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Customer Agreement or the applicable Supplemental Terms, and (iii) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with the Customer Agreement or the applicable Supplemental Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of the Customer Agreement, any Supplemental Terms, or any Additional Services subscription order form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 6.2.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6.4 Survival. The provisions of this Article shall survive the termination of the Customer Agreement and any Supplemental Terms; provided, however, this survival provision shall have no bearing on, and shall not be construed to extend, any statute of limitations otherwise applicable to such obligations.
7.1 During the Term, Bold Penguin may disclose your name as a customer of Bold Penguin and/or subscriber to an Additional Service, and you hereby grant Bold Penguin the right to display your name, company, and logo in Bold Penguin’s marketing materials and on Bold Penguin’s public website, in each case in accordance with any branding guidelines you may provide to Bold Penguin.
8.1 External Breach. In the event of an accidental, unauthorized or unlawful destruction, loss, alteration, disclosure of, or access to, personal data that impacts the personal data you maintain through any Additional Service (“Security Breach”), and which is perpetrated by anyone other than your employees, contractors or agents, upon discovery of such Security Breach, Bold Penguin will: (a) initiate remedial actions that are in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”) and consistent with industry standards; and (b) as required by Applicable Law, notify you of the Security Breach, its nature and scope, the remedial actions Bold Penguin will undertake, and the timeline within which Bold Penguin expects to remedy the Security Breach. You will be responsible for fulfilling your obligations under Applicable Law.
8.2 Internal Breach. In the event of a Security Breach, which is perpetrated by your affiliate, employee, contractor or agent, or due to your failure to maintain your systems, network or Services Data in a secure manner, you shall have sole responsibility for initiating remedial actions and you shall notify Bold Penguin immediately of the Security Breach and steps you will take to remedy such breach. In our sole discretion, we may take any action, including suspension of your access to the Additional Service, to prevent harm to you, us, the Additional Service, or other third parties. You waive any right to make a claim against us for losses you incur that may result from our actions.
9.1 Representations. Each party represents that it has validly entered into this Customer Agreement and has the legal power to do so.
9.2 Our Warranties. We warrant that the Additional Services will (a) perform materially in accordance with the specifications set forth in the Additional Services subscription order form; (b) the provision of the Additional Services will comply with all privacy and data protection laws applicable to our business; and (c) except as permitted by the Customer Agreement or the Supplemental Terms, as applicable, we will not sell personal information provided by you, and we will retain, disclose, or use personal information provided by you only for purposes of providing the Additional Services. Your exclusive remedy, and our entire liability, for any breach of this is limited, at our sole option, to: (i) repair or provide a reasonable workaround for any material, reproducible failure of the Additional Services to conform to the warranty or (ii) refund any pre-paid fees for the remainder of the subscription term for the deficient Additional Services, in which case the applicable subscription term shall be terminated.
9.3 Mutual Warranties. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Additional Services, as applicable (including applicable security breach notification law).
9.4 Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) YOUR USE OF ANY BOLD PENGUIN SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU; (2) ALL BOLD PENGUIN SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BOLD PENGUIN HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO ALL BOLD PENGUIN SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; (3) BOLD PENGUIN DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF ANY BOLD PENGUIN SERVICE, THAT THE FUNCTIONS CONTAINED IN, OR PERFORMED OR PROVIDED BY, THE BOLD PENGUIN SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE BOLD PENGUIN SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY BOLD PENGUIN SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE BOLD PENGUIN SERVICES WILL BE CORRECTED, OR THAT THE BOLD PENGUIN SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, INSTALLATION OF ANY BOLD PENGUIN SERVICE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, AS WELL AS BOLD PENGUIN SERVICES. YOU AGREE THAT YOUR PURCHASES ARE NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, OR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY US REGARDING FUTURE FUNCTIONALITY OR FEATURES AND SHOULD ANY BOLD PENGUIN SERVICE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
10.1 Indemnification by Us. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of an Additional Service in accordance with the Customer Agreement or any Supplemental Terms infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, reasonable attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a Claim Against You, provided you (a) promptly give us written notice of the Claim Against You, (b) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to an Additional Service, we may, in our discretion and at no cost to you: (i) modify the Additional Service so that it no longer infringes or misappropriates, without breaching our warranties under Section 9.2 (Our Warranties); (ii) obtain a license for your continued use of that Additional Service in accordance with the Supplemental Terms; or (iii) terminate your subscription(s) for the Additional Service upon thirty (30) days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscription(s). Notwithstanding the foregoing, the above defense and indemnification obligations do not apply to the extent a Claim Against You arises from: (i) modifications to the Additional Services made by a party other than us; (ii) combining the Additional Services or any part thereof with any other products, hardware, software, applications, processes, or technologies, to the extent the alleged infringement would have been avoided but for such combination; (iii) any unauthorized use of the Additional Services or breach of the Customer Agreement or the Supplemental Terms; or (iv) any services other than Additional Services.
10.2 Indemnification by You. You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that your Services Data, or your use of any Additional Service in breach of the Customer Agreement or the Supplemental Terms, infringes or misappropriates such third party’s intellectual property rights, or violates any third party rights (a “Claim Against Us”), and will indemnify us from any damages, reasonable attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against Us, provided we (a) promptly give you written notice of the Claim Against Us, (b) give you sole control of the defense and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases us of all liability), and (c) give you all reasonable assistance, at your expense.
10.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11.1 LIMITATION OF LIABILITY. EXCEPT FOR (I) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (III) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THE CUSTOMER AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THE CUSTOMER AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY BOLD PENGUIN FROM YOU PURSUANT TO THE CUSTOMER AGREEMENT IN THE TWELVE MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES AND PAYMENT FOR PURCHASED SERVICES).
12.1 Agreement to Governing Law and Jurisdiction. Each party agrees that the Customer Agreement is governed by and shall be construed in accordance with the laws of the State of Ohio, in all respects, without regard to choice or conflicts of law rules, and that all disputes arising out of or relating to this Agreement are limited to the exclusive jurisdiction and venue of the state and federal courts located within Franklin County, Ohio. Each party hereby consents to and waives any objections with respect to such jurisdiction and venue.
13.1 Export Compliance. The Additional Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit any individual who is authorized by you to use one or more of the Additional Services to access or use any Additional Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
13.2 Entire Agreement and Order of Precedence. The Customer Agreement, including any Additional Services Supplemental Terms and order forms, is the entire agreement between you and us regarding your use of our Additional Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties expressly disclaim any reliance on any and all prior discussions, emails, or agreements between the parties. No waiver of any provision of the Customer Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. No modification or amendment of any provision of any Additional Services order form will be effective unless in writing and signed by both parties. The parties agree that any term or condition stated in your purchase order or in any other vendor procurement or similar documentation (excluding Additional Services order forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Additional Services order form, (2) the Supplemental Terms; and (3) the Customer Agreement.
13.3 No Waiver. The failure of Bold Penguin to exercise or enforce any right or provision of the Customer Agreement shall not constitute a waiver of such right or provision.
13.4 Severability. If any part of the Customer Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted to reasonably effectuate the intention of the parties and shall not affect the validity and enforceability of any remaining provisions.
13.5 Survival. The provisions of the Customer Agreement that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.
13.6 Assignment. You may not assign or otherwise transfer any of your rights or obligations under the Customer Agreement without Bold Penguin’s prior written consent, which consent shall not be unreasonably withheld. The Customer Agreement shall be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. Any assignment in violation of the foregoing will be null and void.
13.7 No Legal Advice; Reliance. No part of the Customer Agreement or any Additional Service subscription order form is intended or shall be construed as legal advice. Bold Penguin shall not be liable for any errors or omissions in the content of the Customer Agreement or any Additional Service subscription order form or for any actions taken in reliance thereon.
13.8 No Third-Party Beneficiaries. Nothing in the Customer Agreement or any Additional Service subscription order form, express or implied, is intended to or shall confer upon any person other than the parties hereto, any legal or equitable right, benefit or remedy of any nature under or by reason of the Customer Agreement or any Additional Service subscription order form.
13.9 Relationship of the Parties. The parties are independent contractors. The Customer Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.10 Force Majeure. Except for payment obligations, neither party will be liable for delays and failures in performance to the extent caused by a condition (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
13.11 Jury Trial Waiver. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL
14.1 Manner of Giving Notice. All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email, provided no delivery failure is received. Notices to us shall be addressed to Bold Penguin, Inc., Attn: Legal Department; 100 East Broad Street, 15th Floor, Columbus, OH 43215; Legal@boldpenguin.com. You agree that we may send notices to you at the email address and physical address associated with the Customer Agreement.
14.2 For Termination Notices, the parties agree that email notice is sufficient for both parties. For Bold Penguin, Termination Notices must be sent to Notices@BoldPenguin.com and you agree that we may send Termination Notices to the email address associated with the Customer Agreement.