When you use the Bold Penguin Exchange these are the Terms of Service.
Last updated: January 31, 2023
YOUR USE OF THE PROPRIETARY BOLD PENGUIN EXCHANGE (“EXCHANGE”), IS SUBJECT TO THESE SUPPLEMENTAL TERMS OF SERVICE, THE STANDARDS OF CONDUCT AND THE BOLD PENGUIN CUSTOMER TERMS OF SERVICE (“CUSTOMER TERMS”) (COLLECTIVELY “AGREEMENT”). THE EXCHANGE IS AN “ADDITIONAL SERVICE” UNDER THE CUSTOMER TERMS. TO USE THE EXCHANGE, YOU MUST AGREE TO BE BOUND BY THE AGREEMENT WITH BOLD PENGUIN, INC. AND/OR BOLD PENGUIN COMPANY, LLC OR OTHER BOLD PENGUIN SUBSIDIARY, AS APPLICABLE (COLLECTIVELY, “BOLD PENGUIN”, "WE", "US", AND "OUR"). IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT USE THE EXCHANGE, AS YOUR USE OF THE EXCHANGE IS DEEMED TO BE YOUR ACCEPTANCE OF THE AGREEMENT IN FULL.
The Bold Penguin Privacy Notice (available here) is incorporated herein by reference. This Agreement governs your use of the Terminal, however accessed, including via an internet browser, smartphone, tablet, or other internet connected device.
By signing up for the Exchange 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 the Exchange, (b) you accept the terms of this Agreement on behalf of such legal entity and affiliates, and (c) any references to “you” in this Agreement refers to such legal entity, affiliates and all of the employees, consultants and agents of those respective parties. You are responsible for all activity on the Exchange that occurs under your account.
1.1 Additional Services. The Exchange is a subscription service that you enroll with directly through our 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 this Agreement. In the event a Supplemental Term directly conflicts with any term in this Agreement, the Supplemental Term will apply to your use of the Additional Service instead of the term contained in this Agreement. For the avoidance of doubt, any reference to the Exchange in this Agreement will include any applicable Additional Service(s).
1.2 Modification of Agreement. Subject to Article 5 of these Supplemental Terms, Bold Penguin may modify or update the Customer Terms or the Supplemental Terms at any time. You may review the most current version of the Customer Terms here.
1.3 Scope of the License. Bold Penguin agrees to provide you with a revocable, term limited, worldwide, non-transferable, non-sublicensable, non-exclusive, non-assignable license to access The Exchange (“Exchange License”) in exchange for your payment of a Monthly Minimum Commitment, as set forth in the Exchange Order, which is made a part of these Supplemental Terms by this reference. The Exchange License will automatically terminate upon termination of these Supplemental Terms or your failure to pay the Monthly Minimum Commitment in accordance with these Supplemental Terms, which includes our inability to charge your Payment Method on File under the Agreement. You will have the option, as agreed by you and Bold Penguin, to contribute Prospects to the Exchange; and receive Eligible Prospects from the Exchange, facilitated by Bold Penguin, under these Supplemental Terms:
1.3.1 A “Prospect” is a business specifically identified through the Exchange, using phone number as a unique identifier, as interested in obtaining a quote for commercial insurance in the United States of America; and
1.3.2 An “Eligible Prospect” is a Prospect that meets certain limited criteria defined through your Campaign(s), including but not limited to: (a) business classification set, as agreed to between you and Bold Penguin (via NAICS); and (b) state geographic limitation(s). An Eligible Prospect is not defined by whether you quote or bind a policy.
1.3.3 A “Purchased Prospect” is an Eligible Prospect that Bold Penguin matches to you using your Campaign criteria.
1.3.4 A “Campaign” is a combination of identifying features, such as state(s), NAICs codes, coverages, and bid prices, which determines an “Eligible Prospect” that you will receive from the Exchange.
1.3.5 The “Monthly Minimum Commitment” is the minimum dollar amount as set forth in your Exchange Order that you agree to pay for Purchased Prospects each month, which amount you agree to pay each month in advance and from which amount purchases of Prospects in the following month are deducted. You acknowledge and agree that this amount is non-refundable and non-transferable month-to-month.
1.3.6 A “Supplemental Prospect” is an Eligible Prospect, the value of which exceeds your Monthly Minimum Commitment in the previous month.
1.4 Usage Limitations. You agree not to use the Exchange for illegal or fraudulent purposes, or any other purposes that are prohibited by the Agreement. You further agree to use the Exchange in accordance with all applicable local, state, national, and international laws, rules and regulations. You agree not to interfere with or disrupt the Exchange (including accessing the service through any automated means), or any servers or networks connected to the Additional Service, or any policies, requirements, or regulations of networks connected to the Additional Service (including any unauthorized access to, use, or monitoring of data or traffic thereon).
2.1 Term. These Supplemental Terms take effect on your Exchange Activation Date (defined below) and will remain in effect for as long as you have an active subscription for the Exchange (the "Term").
2.2 Activation and Renewal.
2.2.1 Exchange Activation Date. The Exchange Activation Date is the date when you enroll for your Exchange subscription, which may be at any point during a calendar month. If the Exchange Activation Date is any calendar day other than the first day of a month, it will be different than your Exchange Term Start Date. From the Exchange Activation Date until the Exchange Term Start Date (defined below), you will have access to the Exchange, but you will not be charged your Monthly Minimum Commitment, as set forth in your Exchange Order. Instead, you will be charged only for any Purchased Prospects you make via the Exchange, for which Bold Penguin will charge your Payment Method on File, which will occur on or near the last day of the month in which your Exchange Activation Date occurs.
2.2.2 Exchange Term Start Date. The Exchange Term Start Date is the first day of the month that follows your Exchange Activation Date. The Exchange is a month-to-month subscription, and each term begins on the first day of each month and auto renews monthly unless you non-renew according to Section 2.2.4, below.
2.2.3 Exchange Subscription Monthly Due Date. The Monthly Due Date is the same day of each month as the Exchange Term Start Date, and it is the date on which Bold Penguin will charge your Payment Method on File for your Monthly Minimum Commitment, as set forth in your Exchange Order. You acknowledge that the Monthly Minimum Commitment is non-refundable, non-transferable and cannot be rolled from month-to-month, even if the value of your Purchased Prospects is less than the Monthly Minimum Commitment.
2.2.4 Exchange Non-Renewal. Your Exchange subscription will auto renew monthly on your Exchange Term Start Date unless you provide us at least thirty (30) days prior notice (“Non-Renewal Notice”) before the next Exchange Term Start Date to Notices@boldpenguin.com. Once you provide Non-Renewal Notice, the Termination Effective Date will be the Exchange Term Start Date that follows at least 30 days after the date of your Non-Renewal Notice.
2.2.5 Exchange Connection Fee. Unless waived as set forth herein, Bold Penguin charges all Exchange subscribers an annual Connection Fee to access the Exchange, which is billed on your Exchange Activation Date and each anniversary thereof. The cost of the annual Connection Fee is set forth in the Exchange Order form. We will waive your Connection Fee: (a) so long as you also maintain an active Terminal subscription; or (b) if we have approved a discount applicable to your Exchange subscription. If your Connection Fee is waived pursuant to an active Terminal subscription (Section 2.2.5(a)) and you cancel your Terminal subscription (see Section 2.2.6, below), you acknowledge that the waiver of your Connection Fee is immediately revoked by your Terminal Cancellation (defined below), and YOU FURTHER ACKNOWLEDGE AND AUTHORIZE THE COST OF THE CONNECTION FEE TO BE CHARGED IN FULL TO YOUR PAYMENT METHOD ON FILE ON THE MONTHLY DUE DATE FOLLOWING THE EFFECTIVE DATE OF YOUR TERMINAL CANCELLATION.
2.2.6 Terminal Cancellation. If you also subscribe to the Bold Penguin Terminal, and you cancel that subscription (“Terminal Cancellation”), your Terminal Cancellation will automatically cancel your Exchange subscription effective on the same date as your Terminal Cancellation, and your final date to use the Exchange will be the same date as the effective date of your Terminal Cancellation. For avoidance of doubt, your Minimum Monthly Commitment is non-refundable notwithstanding any misalignment of the cancellation effective dates between your Terminal and the Exchange subscription and you expressly acknowledge the Connection Fee that will be charged to your Payment Method on File as set forth in Section 2.2.5, above.
3.1 Recurring Authorization: Minimum Monthly Commitment. YOUR SUBSCRIPTION FOR THE EXCHANGE AUTOMATICALLY RENEWS ON A MONTHLY BASIS. YOUR PAYMENT METHOD ON FILE WILL BE AUTOMATICALLY CHARGED ON YOUR EXCHANGE TERM START DATE FOR THE AMOUNT OF YOUR MONTHLY MINIMUM COMMITMENT IN ACCORDANCE WITH YOUR EXCHANGE ORDER UNLESS YOU PROPERLY NON-RENEW AS SET FORTH ABOVE (see Section 2.2.4). You also expressly authorize Bold Penguin to debit or charge, as applicable, your Payment Method on File in accordance with these Supplemental Terms, expressly including, but not limited to the Connection Fee as set forth in Section 2.2.5, as applicable.
3.2 Annual Authorization: Connection Fee. If your annual Connection Fee to access the Exchange is not waived pursuant to an exception set forth in Section 2.2.5, above, YOUR PAYMENT METHOD ON FILE WILL BE AUTOMATICALLY CHARGED ANNUALLY ON THE SAME CALENDAR DAY AND MONTH AS YOUR EXCHANGE ACTIVATION DATE FOR THE AMOUNT OF YOUR CONNECTION FEE IN ACCORDANCE WITH YOUR EXCHANGE ORDER UNLESS YOU PROPERLY NON-RENEW AS SET FORTH ABOVE (see Section 2.2.4).
3.3 Payment for Supplemental Prospects. You expressly authorize Bold Penguin to charge your Payment Method on File for the cost of the Supplemental Prospects, if any, within two (2) business days following each month-end. Monthly Minimum Commitment charges are non-refundable, non-transferable and cannot be rolled from month-to-month, even if the value of Purchased Prospects is less than the Monthly Minimum Commitment.
3.4 Suspension for Non-Payment. If your Payment Method on File cannot be debited or charged, Bold Penguin will notify you to update your payment information. In the event you do not update your Payment Method on File promptly upon Bold Penguin’s notice, your access to the Exchange may be suspended or terminated. You acknowledge that your Connection Fee and Monthly Minimum Commitment, as applicable, are non-refundable, and that Bold Penguin will not issue refunds or credits for partial months of access to the Exchange absent Bold Penguin’s material breach of these Supplemental Terms.
3.5 Subscription Charge Adjustments. Bold Penguin may at any time, upon notice of at least 30 days, or a longer period if required by Applicable Law, change the price of your Additional Service(s), or institute new charges or fees. Price changes and institution of new charges will apply to your next renewal term after the 30 days' notice and the updated fees will be subtracted from your prepayment. If you do not agree to any such price changes, then you must timely cancel your Exchange subscription in accordance with Section 2.2.4, above and stop using the Exchange prior to the commencement of the renewal subscription period for which the price change applies.
4.1 Suspension or Termination for Material Breach. In addition to Bold Penguin’s rights under Section 3.4 (Suspension for Non-Payment) of these Supplemental Terms, the parties acknowledge Bold Penguin’s rights under Section 2.5 of the Customer Terms (Suspension and Termination of Additional Services). Bold Penguin may also downgrade, suspend or terminate your access to the Exchange without liability and without providing you any refund of prepaid fees, after providing you with 30 days’ advance written notice, if (a) you fail to affirmatively agree to material modifications of this Agreement pursuant to Section 5.1 below, or (b) you do not log in to or otherwise use the Exchange for a period of 180 days or more. Notices 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.
4.2 Your Services Data Portability and Deletion. After the effective date of termination of these Supplemental Terms, we will have no obligation to maintain or provide your data, and may, in our sole discretion, delete or destroy all copies of your data in our systems or otherwise in our possession or control, unless legally prohibited.
5.1. Modification of Supplemental Terms. Bold Penguin may modify or update these Supplemental Terms at any time. In the event Bold Penguin determines it is necessary to make a material modification to these Supplemental Terms, you will be notified of such change and may be asked to affirmatively agree to such modified version. Note, however, that your use of the Exchange after modifications to the Supplemental Terms take effect constitutes your binding acceptance of such changes. You may review the most current version of these Supplemental Terms here.
5.2. Exclusive Remedy. If you are dissatisfied with the terms of these Supplemental Terms or any modifications to them or the Exchange, you agree that your sole and exclusive remedy is to terminate your Exchange subscription and discontinue use of the Exchange.
6.1. Your duties, rights and covenants:
6.1.1 Insurance Products. You shall be solely responsible for the sale of insurance products. You are not responsible for a purchaser’s interactions with Prospects that you contribute to the Exchange, if any.
6.1.2 Licensure. You represent that you have all valid licenses under all laws, rules, regulations, and/or regulatory guidance applicable to you or Bold Penguin (“Applicable Laws”) in each jurisdiction from where you are supplying Prospects to The Exchange or requesting Eligible Prospects (as applicable) and covenant that you will maintain all necessary valid licenses in each such jurisdiction. You further agree to inform Bold Penguin immediately in writing if you cease to maintain a valid license in any such jurisdiction. We may request from time-to-time that you provide copies of your valid licenses. You represent that you presently act, and covenant that you will at all times act, in compliance with all Applicable Laws, including insurance laws and regulations, applicable to the conduct of your business and use of your use of the Exchange.
6.1.3 Set Off. You agree not to deduct from any amount(s) you owe us, any indebtedness or other amount we owe you. The provisions of this Section shall survive the termination of these Supplemental Terms or any other agreement between you and Bold Penguin.
6.2 Our Reporting Requirements, Representations and Limitations of Authority
6.2.1 Reports. Upon request, Bold Penguin will provide you with monthly reports on Exchange activity for Prospects that you contributed to or purchased from the Exchange.
6.2.2 Limitation on Authority. With respect to insurance, Bold Penguin shall have no authority to accept applications, bind coverage, make coverage interpretations or recommendations, receive or collect premiums, process requests for endorsements, receive claim reports, or provide service to Policyholders.
6.2.3 Representations and Warranties. Bold Penguin represents and warrants that it is in compliance with all Applicable Laws.
7.1. If you contribute Prospects to the Exchange, the following terms apply:
7.1.1 License. You provide an irrevocable, sub-licensable, transferable, assignable, worldwide, license for Bold Penguin and its subsidiary company, Bold Penguin Company, LLC d/b/a Commercial Insurance Center (“CIC”) to utilize Prospect Data (as defined below) to contact the Prospect regarding insurance offers, marketing the Prospect to potential purchasers, and facilitating the purchase of such Prospect by a purchaser.
7.1.2 Single Transfer of Prospects. You agree not to sell, license, or otherwise permit marketing to a Prospect by any third party for at least 90 (ninety) days after you contribute a Prospect to the Exchange.
7.1.3 Prospect Data: Definition, Limitations, Proof of Consent.
a. You agree not to store, record, or otherwise collect calls or information from Prospects (“Prospect Data”) unless you first notify the Prospect that: (i) the information is being collected to provide product and/or service quotes, and (ii) they may be contacted by insurance agents, insurance carriers, or others who will receive Prospect Data. Prospect Data shall be collected only from Prospects who have provided their express written consent prior to the collection.
b. You agree not to provide Prospect or Prospect Data to Bold Penguin without the permission of each individual Prospect to whom the Prospect Data pertains and from whom the Prospect Data was collected. You agree not to contribute to the Exchange the Prospect Data of any Prospect that has requested its data not be sold by you.
c. You agree to collect Prospect’s prior express written consent (“Prospect’s Written Consent”) in compliance with all Applicable Laws, including, but not limited to, the TCPA and Do-Not-Call laws, and in a manner that authorizes Bold Penguin and CIC to call any telephone number in the Prospect Data for the purpose of selling Bold Penguin’s and a potential purchaser’s products and/or services, including through the use of an automatic telephone dialing system, artificial or prerecorded voice, and text message. Without limiting the generality of the foregoing, Prospect’s Written Consent will comport with the definition of “prior express written consent” as defined in 47 C.F.R. § 64.1200(f)(9) and interpreted by regulatory and judicial opinions, as defined in Fla. Stat. § 501.059(g), and as contemplated by other federal, state, and local laws and regulations applicable to telephonic solicitation.
d. Upon request, you agree to promptly (no more than three business days) provide Bold Penguin with proof of each Prospect’s Written Consent (“Proof of Consent”), in addition to all other information or evidence reasonably requested by Bold Penguin. Proof of Consent will include, at minimum: (A) images of notification and consent language appearing on the source where Prospect Data was solicited and/or collected; (B) source IP address of any Prospect Data that was solicited or collected via a website; (C) date and time stamp indicating when the Prospect Data was collected; (D) written agreement signed by Prospect or regular user of the phone number (legally compliant e-doc is permissible) that: (x) clearly authorizes Bold Penguin and CIC to deliver to the Prospect advertisements and/or telemarketing calls using an automatic telephone dialing system, an artificial or prerecorded voice, and text messages, (y) includes the telephone number to which such advertisements or telemarketing messages are authorized to be delivered, and (z) includes a clear and conspicuous disclosure advising the Prospect that they are not required to sign, agree to or enter into the agreement (directly or indirectly) as a condition of purchasing any property, goods, or services.
e. You agree to use and maintain record keeping systems sufficient to establish conclusively that Prospect's Written Consent was obtained in accordance with all Applicable Laws (“Records of Consent”). You agree to maintain Records of Consent at no additional cost to Bold Penguin, in a reasonably accessible location, for not less than the period required by Applicable Laws, or if no legal requirement exists, for such period as dictated by prudent business practice or as otherwise directed by Bold Penguin but in no instance less than five (5) years after Prospect provided Prospect’s Written Consent.
f. Prospect Data, in whole or in part, shall not be obtained from third parties (other than Prospects themselves) unless such third parties have agreed in writing that their Prospect Data meets or exceeds each of the criteria in this section. For avoidance of doubt, you remain responsible for Prospect Data you provide to Bold Penguin even if you obtained such Prospect Data from a third party.
NOTE: This section does not apply to Prospects that you quote and bind. Bold Penguin will compensate you in accordance with the applicable carrier’s commission schedule for Prospects that you quote and bind.
7.1.4 Compensation for Contributed Prospects. You agree to contribute Prospects to the Exchange in exchange for the compensation as set forth below.
a. Seller’s Fee. Bold Penguin agrees to remit to you the purchase price actually paid by a buyer and collected by Bold Penguin for a Prospect minus a fifty percent (50%) Exchange fee (the remittance amount will be referred to as “Seller’s Fee”). Bold Penguin is not liable for and will not pay you to the extent prohibited by law, up to and including those jurisdictions where revenue-sharing arrangements are not permitted.
b. Remittance Schedule. Bold Penguin shall remit any applicable Seller’s Fee(s) to you monthly within thirty (30) days after the end of the month in which Bold Penguin actually receives the purchase price, subject to offset by Bold Penguin of any money due from you, at Bold Penguin’s sole discretion.
c. Not Based on Commission or Premium. In no event will Bold Penguin compensate you based on the amount of insurance policy premium paid by a Prospect or upon the amount of any commission received by any party in connection with any insurance policy purchased by a Prospect.
8.1 If you purchase Prospects via the Exchange, the following terms apply:
8.1.1 Receiving Eligible Prospects. Bold Penguin shall facilitate providing you with Eligible Prospects as set forth below:
a. Call Transfer. Bold Penguin will deliver Eligible Prospects to you by Call transfer plus Prospect Data. You understand that a current license to use The Exchange is required to receive Eligible Prospects. For purposes of clarity, Bold Penguin delivers Eligible Prospects to you directly to your Bold Penguin Terminal instance and not onto your local infrastructure or system, unless separately subscribed via an API direct connection.
b. Purchase of Eligible Prospects. For clarification, your multiple conversations with the same Purchased Prospect within a 90-day period are considered a single purchase. For further clarification, an Eligible Prospect is a “Purchased Prospect” even where you decline to quote or sell an insurance policy to the Eligible Prospect so long as the filter criteria, as provided by you, are satisfied.
c. Credit for Non-Eligible Prospect(s). Bold Penguin agrees to credit you for each Prospect delivered by Bold Penguin that (x) is not classified in accordance with the business classification set as agreed to by the parties; (y) does not meet your state geographic limitation; or (z) is not seeking an insurance quote (“Non-Eligible Prospect”). To receive credit for a Non-Eligible Prospect, you must submit a written request within seven (7) days of the date Bold Penguin delivered the Non-Eligible Prospect to you, and Bold Penguin must validate your claim, in Bold Penguin’s sole discretion. Non-Eligible Prospect credit requests received after the last day of any calendar month, if approved, will be credited to your Monthly Minimum Commitment for the next following calendar month.
8.1.2 Consent to Contact. Purchased Prospects will have provided consent pursuant to Applicable Laws to receive marketing calls from you.
8.1.3 Disposition Status Reporting. You agree to provide to Bold Penguin the disposition status of each Eligible Prospect that you receive from Bold Penguin (“Disposition Status”) through an automated technical integration. You understand that your failure to provide Disposition Status may result in your inability to receive Prospects and could also adversely affect your bids for Eligible Prospects. You also understand that Bold Penguin may, in its sole discretion, choose not to continue to facilitate providing you with Eligible Prospects where you fail to provide Disposition Status. Should Bold Penguin so elect, you agree to provide Disposition Status, notwithstanding Bold Penguin’s decision to discontinue providing you with Eligible Prospects. Disposition Status reported by you will be owned by Bold Penguin and may be used and disclosed by Bold Penguin without restriction or further compensation to you.
8.1.4 Prospect Data Compliance. You agree to use Prospect Data solely for the purpose of marketing and selling your insurance products to the applicable Prospect. You agree to comply with all applicable privacy and data security laws with regard to the Prospect Data to the same degree as required by businesses/data controllers under such applicable privacy and data security laws. You will use reasonable technical, organizational, and physical security measures to protect Prospect Data in your possession from unauthorized or unlawful access, use, disclosure, or loss. You grant Bold Penguin the right to take reasonable and appropriate steps, at your cost, to ensure that the Prospect Data received by you is used and disclosed by you in compliance with applicable privacy and data security laws and these Supplemental Terms, including without limitation the right, upon notice, to take steps to stop and remediate your unauthorized or unlawful use or disclosure of Prospect Data. You must notify Bold Penguin in writing within five (5) business days of your determination that you can no longer process Prospect Data in compliance with applicable privacy and data security laws or this Agreement.
8.2 Right to Security Deposit. Bold Penguin reserves the right to require you to pay a security deposit (“Security Deposit”) if, in our sole discretion, your purchase of Supplemental Prospects warrants additional security. Bold Penguin shall hold the entirety of the Security Deposit until this Agreement is terminated, with or without cause, by either party. If we are holding a Security Deposit upon termination of the Agreement, with or without cause, Bold Penguin will refund your Security Deposit within thirty (30) days of the Agreement termination effective date. Notwithstanding the foregoing, if you owe Bold Penguin any amounts on the termination effective date, you expressly agree to permit Bold Penguin to withhold those funds from the Security Deposit before returning the balance to you.