When you use Bold Penguin sub-appointments to gain market access to Bold Penguin carriers these are the Terms of Service.
Last updated: March 8, 2023
Bold Penguin Customer Terms of Service
YOUR USE OF BOLD PENGUIN SUB-APPOINTMENTS TO GAIN MARKET ACCESS TO BOLD PENGUIN CARRIERS (“SUB-APPOINTMENTS”) IS SUBJECT TO THESE SUPPLEMENTAL TERMS OF SERVICE (“PRODUCER AGREEMENT”) AND THE BOLD PENGUIN CUSTOMER TERMS OF SERVICE (“CUSTOMER TERMS”) (COLLECTIVELY “THE AGREEMENT”). THE PRODUCER AGREEMENT IS AN “ADDITIONAL SERVICE” UNDER THE CUSTOMER TERMS. IN ORDER TO USE SUB-APPOINTMENTS, 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 IN FULL, DO NOT USE THE SUB-APPOINTMENTS, AS YOUR USE OF SUB-APPOINTMENTS IS DEEMED TO BE YOUR ACCEPTANCE OF THE AGREEMENT.
The Bold Penguin Privacy Notice (available here) is incorporated herein by reference. This Agreement governs your use of the sub-appointments, however accessed, including via an internet browser, smartphone, tablet, or other Internet connected device.
By signing up for sub-appointments 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 sub-appointments, (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 refer to such legal entity, affiliates and all of the employees, consultants, and agents of those respective parties. You are responsible for all activity using the sub-appointments that occurs under your account.
1.1 Additional Services. The Agreement may include additional services that you subscribe to receive directly from or through Bold Penguin (“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 Agreement. In the event a Supplemental Term directly conflicts with any term in the Agreement, the Supplemental Term will apply to your use of the Additional Service instead of the term contained in the Agreement.
1.2 Modification of Producer Agreement. Bold Penguin may modify or update the Producer Agreement at any time. In the event Bold Penguin determines it is necessary to make a material modification to the Producer Agreement, you will be notified of such change and may be asked to affirmatively agree to such modified version of the Producer Agreement. Note, however, that your use of Bold Penguin sub-appointments after modifications to the Producer Agreement take effect constitutes your binding acceptance of such changes. You may review the most current version of the Producer Agreement here.
2.1 You are authorized by this Agreement to obtain quotes, submit applications, place, and sell insurance coverages and policies using Bold Penguin sub-appointments.
2.2 For any insurance quotes, applications, or insurance policies, including renewals, that you originate, place, or renew on the Terminal will be underwritten and issued using a Bold Penguin direct appointment. You will be a Sub-Producer and Bold Penguin will be the “Broker of Record”.
2.3 Subject to Section 2.2, if you have direct appointments with carriers, any insurance quotes, applications, or insurance policies, including renewals, that you originate, place, or renew on the Terminal may be underwritten and issued using your direct appointment(s), and you will be the “Broker of Record”.
2.4 You are authorized to request a carrier to accept a risk and bind coverage, but you have no authority to bind any risk on behalf of any carrier or on behalf of Bold Penguin.
2.5 No written or oral understandings, agreements, or communications between you and insureds or prospective insureds are binding on Bold Penguin or any carrier.
3.1 Term. This Agreement will remain in effect for as long as you have an active subscription for the Terminal (the "Term") unless terminated pursuant to this Section 3 of this Agreement.
3.2 Start Date and Renewal. This Agreement shall commence on the date you execute this Agreement and shall automatically renew so long as your Terminal subscription renews. The terms of this Agreement apply to insurance policies issued or renewed using Bold Penguin sub-appointments on or after the date you execute this Agreement. For clarity, if your Terminal subscription terminates, Bold Penguin may terminate this Agreement, in its sole discretion.
3.3.1 Either of us may terminate this Agreement, with or without cause, upon thirty (30) days advance written notice to the other, or at any time by mutual agreement. Your notice of termination to us should be sent to Notices@boldpenguin.com. Notice from Bold Penguin will be sent to you at the email address you have provided to us, which you are responsible to keep updated.
3.3.2 If your insurance license, in any jurisdiction, is expired, surrendered, cancelled, non-renewed, suspended, revoked or your authority to sell insurance is otherwise invalid, your authority to solicit and submit business under this Agreement will be suspended automatically as of the date your license was surrendered, cancelled, non-renewed, suspended, or revoked. Your automatic suspension does not require any action on our part, and we shall be permitted to terminate this Agreement effectively immediately. If your license is reinstated within a reasonable time, and we have not terminated this Agreement, we may, but are not required to, reinstate your authority under this Agreement.
3.3.3 In the event of your fraud, or gross or willful negligence or misconduct, or upon the sale, transfer, merger, consolidation, or change of control or majority ownership of your business or your assets without Bold Penguin’s prior written consent, we shall have the right to immediately terminate this Agreement by giving you notice.
3.3.4 If any applicable law governs the manner of termination of this Agreement, you hereby waive the requirements of such law to the extent such waiver is valid and permissible.
3.3.5 Subject to Section 3.3.3, your authority to solicit and submit business through the Terminal and under this Agreement shall cease at 12:01 a.m. on the effective date of termination of this Agreement.
3.4 Suspension Rights. Subject to Section 2.4 of the Terminal Terms of Service, Bold Penguin may suspend your access to the Terminal and terminate this Agreement and your use of the Terminal at any time in the event you materially breach this Agreement and you do not cure such breach within thirty (30) days of Bold Penguin providing you with written notice of such breach (including notice by email).
4.1 You represent, warrant, and covenant to Bold Penguin that you, and if you represent a business entity, all your producers and sub-producers who submit insurance quotes, applications, or insurance policies, including renewals, through the Terminal, are properly licensed in each jurisdiction in which you do business and will maintain those licenses in good standing for the duration of the Agreement.
4.2 You agree to comply with all applicable federal, state, and local laws relating to the operation of your business and sale of insurance coverages and policies available on the Terminal, including, without limitation, laws concerning insurance licensing, sales practices, surplus lines, privacy, cybersecurity (“Applicable Laws”). You agree to comply with Applicable Laws in all jurisdictions where you or your business entity does business pursuant to this Agreement throughout the Term and for so long as policies issued pursuant to this Agreement remain in force.
4.3 You agree to comply with all policies, procedures, instructions, underwriting rules, rates, guidelines, or other requirements of all insurance carriers on the Terminal and with all Bold Penguin policies, procedures and instructions.
4.4 You acknowledge that a carrier may accept or reject any risk or insurance quote, application, or insurance policy for any reason permitted by law, including your failure to comply with the carrier’s underwriting rules, rates, guidelines, or other requirements.
4.5 You agree to deliver to an insured those policies, endorsements, or other documents that a carrier may require, and shall deliver them in their complete original form with no modifications, except as may be required under applicable law.
4.6 You shall pay all expenses related to the performance of your obligations under this Agreement and cooperate with Bold Penguin, including without limitation, as follows: (a) you shall maintain your own internet access and any other technology or resources that you may need to submit business through the Terminal, (b) you shall maintain all records related to business you submit through the Terminal for such periods as required by Applicable Laws, (c) upon three (3) business days’ advance notice and during normal business hours, you shall allow Bold Penguin or its representatives to inspect and audit your business records and accounts, and (d) you agree to provide information as Bold Penguin may request about your information security program for Bold Penguin to satisfy its legal and regulatory obligations.
4.7 You shall not accept any premium on behalf of Bold Penguin for any insurance policy placed through the Terminal from any applicant or policyholder, except as authorized by a carrier.
4.8 Without the prior written consent of Bold Penguin or as permitted by the carrier, you shall not distribute, publish, or cause to be published or circulated, any statement or advertisement that identifies Bold Penguin or any carrier.
4.9 Notice, Disclosure and Service Requirements
4.9.1 Claims. You must provide notice of a claim directly to the respective carrier, or as otherwise directed by such carrier. You shall not submit notice of a claim to Bold Penguin.
4.9.2 Fees. You acknowledge that you and/or Bold Penguin, in either party’s sole discretion may charge certain fees to policyholders with respect to business submitted through the Terminal, as may be permitted by applicable law. You also acknowledge that all fees must be separately identified as fees charged by you and shall not be described as premiums or added to premiums. You agree to comply with all applicable laws pertaining to producer fees, including without limitation, disclosure and consent requirements, and prohibitions against unfair discrimination.
4.9.3 Complaints. You will immediately inform Bold Penguin about any consumer, regulatory, Better Business Bureau complaints or inquiries, and shall cooperate with Bold Penguin in resolving such matters, including providing records and coordinating responses.
4.9.4 Sale of Assets. Subject to Section 7, you acknowledge that you must provide written notice to Bold Penguin in advance of any sale of your assets or your book of business, and if you are a legal entity, any sale or merger of your legal entity, which will modify the Broker of Record for any business you originated, placed, or renewed on the Terminal using a Bold Penguin direct appointment.
4.9.5 Policy Servicing. You acknowledge that business you write through a Bold Penguin direct appointment will be serviced directly by the Bold Penguin carrier, not by Bold Penguin. Servicing may include, but is not limited to, policy changes, renewals, billing, premium collection, and claims handling. You agree to comply with any specific customer service or notification procedures that the Bold Penguin carrier may require.
4.10.1 You agree to maintain errors and omissions insurance coverage to cover any potential liability arising out of or relating to business you submit through the Terminal. The insurance policy shall be issued by an insurance carrier with an A.M. Best rating of A- or better and will provide no less than $1,000,000 USD (one million dollars) of liability coverage. Any of your individual producers or sub-producers shall be insured under such policy. You shall submit a certificate of insurance, or other proof of coverage satisfactory to Bold Penguin at least annually to Bold Penguin and promptly when any change is made to the policy.
4.10.2 You shall immediately notify Bold Penguin if your errors and omissions insurance policy lapses or terminates, coverage is reduced, or the issuing carrier changes, along with the reason for such lapse, termination, or change.
4.10.3 You agree to promptly notify Bold Penguin of any claim or potential claim you report under your errors and omissions policy that arises out of or in connection with any business you submitted under this Agreement.
5.1 Bold Penguin shall determine, at its sole discretion, which Bold Penguin directly appointed carriers will be available to you on the Terminal.
5.2 Bold Penguin agrees to facilitate your sub-appointment with carriers with which Bold Penguin holds direct appointments but does not guarantee the timing or your ability to secure any sub-appointment from any carrier. You acknowledge that each carrier has sole and complete discretion whether to approve your sub-appointment, and you agree that Bold Penguin has no obligation to you if a carrier refuses to issue you a sub-appointment or is untimely in doing so.
5.3 Bold Penguin will comply with all Applicable Laws relating to the operation of its business and the offering and sale of products on the Terminal.
6.1.1 Each of us agrees to maintain the privacy, confidentiality and security of the other’s “Confidential Information”, which means any information provided in the performance of obligations under this Agreement or during events leading up to this Agreement, and includes, without limitation, materials or information, in whatever form or medium, relating to either party’s present or proposed business strategies, products, services, customers, marketing strategies, business relationships, financial information, information systems, trade secrets, intellectual property, software, and any other sensitive or proprietary information about a party’s business and operations. Confidential Information does not include any information that is publicly available, or that was provided by a third-party, unless the receiving Party had reason to know the third-party was not authorized to disclose such information.
6.1.2 Each of us agrees to hold in strict confidence all Confidential Information of the other Party. We agree to limit access to each other’s Confidential Information to personnel who need to know in order to perform obligations under this Agreement. Unless required by law, each of us agrees not to share, transfer, disclose or otherwise provide access to the other’s Confidential Information to any third party, without the other Party’s prior written consent.
6.1.3 The provisions of this section shall survive the termination of this Agreement.
6.2 Independent Contractor
6.2.1 You are an independent contractor and are expected to exercise your independent judgment and discretion regarding the performance of your obligations under this Agreement. This Agreement is not a contract of employment, and nothing herein shall be construed to create an employment relationship between you and Bold Penguin. Bold Penguin will not control or direct in any manner the conduct of your work and is interested solely in the placement of insurance products.
6.2.2 You understand that as an independent contractor, you are not entitled to unemployment compensation from Bold Penguin. In addition, Bold Penguin will make no deduction for federal or state taxes from compensation due to you under the Agreement. You acknowledge that you are solely and totally responsible for the payment of any and all taxes related to the operation of your insurance business, including the sale or placement of products through the Terminal.
7.1 You shall control all expirations and renewals of business subject to this Producer Agreement; provided, however, if you fail to account for or to make payment of all amounts due pursuant to this Producer Agreement, such expirations and renewals, including any future commissions relating thereof, shall become the property of Bold Penguin. Nevertheless, you shall remain liable for all remaining amounts owed plus any expenses, costs and fees incurred in disposing of such expirations and renewals.
7.2 Notwithstanding Section 7.1, you acknowledge that Bold Penguin is the Broker of Record for all business you originate, place or renew on the Terminal (“Bold Penguin Business”) using a Bold Penguin direct appointment. You agree that if you: (1) cause the Broker of Record no longer to be Bold Penguin for Bold Penguin Business, or (2) sell or otherwise transfer part or all Bold Penguin Business, and thereafter the Broker of Record no longer is Bold Penguin, the following provisions shall apply:
7.2.1 For in-force Business valued under $250,000.00 (two hundred fifty thousand dollars) in total written premium (“TWP”), you shall pay Bold Penguin a fee of 1% (one percent) of the TWP.
7.2.2 For in-force Business valued over $250,000.00 (two hundred fifty thousand dollars) but $500,000.00 (five hundred thousand dollars) or less in TWP, you shall pay Bold Penguin a fee of 2% (two percent) of the TWP.
7.2.3 For in-force Business valued over $500,000.00 (five hundred thousand dollars) in TWP, you shall pay Bold Penguin a fee of 2.5% (two and a half percent) of the TWP.
7.3 For the avoidance of doubt, Section 7.2 applies only to Bold Penguin Business. Bold Penguin will issue an invoice to you for the appropriate fee, which invoice shall be due and payable to Bold Penguin no later than thirty (30) days from the date of the invoice. You expressly agree that these provisions are reasonable compensation and are not punitive in nature.
8.1 Bold Penguin will pay you commission on insurance policies written and sold by you during the Term of this Agreement, for so long as the policies are in force, including renewals, in so far as all the following factors are satisfied: the policy was (i) underwritten and issued by a carrier with which Bold Penguin has a direct appointment; (ii) quoted on the Terminal; and (iii) bound through the Terminal or on a carrier portal. If this Agreement is terminated, Bold Penguin will pay renewal commissions on insurance policies that are in force on the effective date of the termination for so long as the policies are in force, unless prohibited by law.
8.2 Bold Penguin shall not pay you commissions or other compensation for business that you submit through the Terminal but is issued pursuant to your direct appointment.
8.3 Bold Penguin shall pay commissions in accordance with the commission schedule electronically available to you on the Terminal. Bold Penguin may revise the commission schedule, including commission rates, upon written notice (email shall suffice). Such commissions shall constitute your sole compensation under this Agreement.
8.4 We pay commissions monthly via electronic transfer, and you are responsible for updating your bank account information. We are not responsible for any delay or damages caused by your failure to provide us with updated banking information. You will be responsible for any fees or costs, including costs assessed to Bold Penguin, incurred related to outdated banking information.
8.5 You agree to obtain prior written consent from Bold Penguin before assigning commissions to a third-party. No assignment shall be valid without Bold Penguin’s prior written consent.
8.6 You agree that we may apply any amounts due to you under this Agreement, including undistributed commissions, to offset any balance you owe us under this or any other Agreement between us.
8.7 During the Term of this Agreement and after its termination, if Bold Penguin is required to refund any commission under any policy, Bold Penguin shall notify you, and you agree, within 10 (ten) calendar days, to return to Bold Penguin the amount of commission you received for the policy. Your obligation to return commissions under this paragraph shall survive the termination of this Agreement.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL BOLD PENGUIN, ITS AFFILIATES, AGENTS OR PRINCIPALS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE BOLD PENGUIN TERMINAL AND SERVICES OR ANY THIRD PARTY SOFTWARE, APPLICATIONS OR SERVICES IN CONJUNCTION WITH THE BOLD PENGUIN TERMINAL OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF BOLD PENGUIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL BOLD PENGUIN'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES RELATED TO YOUR USE OF BOLD PENGUIN SUB-APPOINTMENTS (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT OF TWO HUNDRED AND FIFTY DOLLARS (U.S.$250.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.1 You agree to indemnify, defend and hold harmless Bold Penguin, and its subsidiaries, affiliates, officers, directors, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or in connection with: (a) the violation of any law, regulation, or other legal mandate, by you, your officers, directors, employees, or agents (“Indemnitors”); (b) breach by the Indemnitors of any covenant, condition, warranty, or representation contained in this Producer Agreement; (c) the negligence, gross negligence, or willful or wanton misbehavior of the Indemnitors; or (d) any actions of Indemnitors that would allow Bold Penguin to terminate this Producer Agreement; (iii) any non-competition contract litigation with Indemnitors prior employer or insurance agency; (iv) any professional liability claims made against Bold Penguin that are due to the acts or omissions of Indemnitors during the term of this Producer Agreement and which cause Bold Penguin to make a claim under its Errors and omissions insurance policy; or (iv) any action, suit, proceeding, claim, demand, judgment, cost or expense (including reasonable attorney’s fees) that is incidental to any of the above.
9.2 You understand that your indemnification obligations will survive the expiration or termination of this Producer Agreement or the Customer Terms. All our rights and remedies are cumulative and in addition to all our rights and remedies at law or in equity.
10.1 Unless otherwise agreed to by you and Bold Penguin, during the Term, Bold Penguin may disclose your name as a sub-producer of Bold Penguin and/or subscriber to the Terminal, 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.