When you use any Bold Penguin Service these are the Terms of Service.
Primary Terms of Service
YOUR USE OF ANY AND EVERY BOLD PENGUIN SERVICE IS SUBJECT TO THESE TERMS OF SERVICE(THE “PRIMARY TERMS”). TO HAVE A COMMERCIAL 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 PRIMARY TERMS AND THE STANDARDS OF CONDUCT (COLLECTIVELY, “PRIMARY AGREEMENT”). IF YOU DO NOT ACCEPT THIS PRIMARY AGREEMENT IN FULL, DO NOT USE ANY BOLD PENGUIN SERVICE IS DEEMED TO BE YOUR ACCEPTANCE OF THIS PRIMARY AGREEMENT.
By executing the Primary 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 Primary 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.
Scope and Modification of the Primary Agreement
1.1 Additional Services. The Primary 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 “SupplementalTerms”), and those Supplemental Terms become part of the Primary Agreement. In the event a Supplemental Term directly conflicts with any term in the Primary Agreement, the Supplemental Term will apply to your use of the Additional Service instead of the term contained in the Primary Agreement.
1.2. Modification of Agreement. Bold Penguin may modify or update the Primary Agreement at anytime. In the event Bold Penguin determines it is necessary to make a material modification to the Primary Agreement, you will be notified of such change and maybe asked to affirmatively agree to such modified version of the Primary Agreement.
Note, however, that your use of any of Additional Services after modifications to the Primary Agreement take effect constitutes your binding acceptance of such changes. You may review the most current version of the Primary Agreement here.
1.3 Exclusive Remedy. If you are dissatisfied with the terms of the Primary Agreement or any modifications to the Primary 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 Primary Agreement, as applicable.
Term and Termination
2.1 Term. The Primary 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 Primary 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 Primary Agreement(i) thirty (30) days after providing written notice to the other party of a material breach of its obligations under the Primary 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 Primary Agreement more than two(2) times not withstanding any cure of such breaches. Termination by either party of the Primary Agreement shall automatically terminate all Additional Services.
2.4 Refund or Payment upon Termination. If you terminate the Primary Agreement in accordance with Section 2.3(Termination), you will not be due any refund of any prepaid fees for anyAdditional Services. If we terminate the Primary Agreement in accordance withSection 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 Primary Agreement at any time in the event you materially breach the Primary 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 Primary 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 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 Primary Agreement, 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.
Fees and Payment for Purchased Services
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 PaymentMethod on File; (ii) authorize us to charge such Payment Method on File for allAdditional 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 net thirty (30) days from the invoice date. 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 amount you owe for anyAdditional 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 withSection 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, 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.
Intellectual Property Rights
4.1 Reservation of Rights. Subject to the limited rights expressly granted to you under the Primary 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 theAdditional 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 inSection 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. 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 anyAdditional Service(s) to Bold Penguin, the Feedback will not be considered confidential or proprietary, and Bold Penguin may use and include any suchFeedback 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 affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in theAdditional 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.
Use of Services
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 AdditionalServices; (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) circumventor 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.
5.3 Suspension. If we become aware of a violation of the Primary Agreement or any Supplemental Terms by you or your authorized user(s) or if there is a disruption to the AdditionalServices caused by you or your authorized user(s), we may suspend that user’s access to the Additional Services. The suspension will be limited to the period of time until the applicable user has cured the breach that caused the suspension and will be to the minimum extent and of the minimum duration required to prevent or terminate the disruption event.
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 Primary 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 theDisclosing 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 Primary 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 Primary 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 Primary Agreement, any Supplemental Terms, or any AdditionalServices 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 ConfidentialInformation of the Disclosing Party to the extent compelled by law or by theorder of a court or similar judicial or administrative body to do so, providedthe Receiving Party gives the Disclosing Party prior notice of the compelleddisclosure (to the extent legally permitted) and reasonable assistance, at theDisclosing Party’s cost, if the Disclosing Party wishes to contest thedisclosure. If the Receiving Party is compelled by law to disclose theDisclosing Party’s ConfidentialInformation as part of a civil proceeding to which the Disclosing Party is aparty, and the Disclosing Party is not contesting the disclosure, theDisclosing Party will reimburse the Receiving Party for its reasonable cost ofmpiing and providing secure access to that Confidential Information.
6.4 Survival. The provisions of this Article shall survive the termination of the Primary 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 actionsBold 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 Data in a secure manner, you shall have sole responsibility for initiating remedial actions and you shall notify BoldPenguin 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.
Representations, Warranties, Exclusive Remedies, and Disclaimers
9.1 Representations. Each party represents that it has validly entered into this 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 Primary 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 AdditionalServices. 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 BEMADE AVAILABLE, THAT DEFECTS IN THE BOLD PENGUIN SERVICES WILL BE CORRECTED, ORTHAT 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, suitor proceeding made or brought against you by a third party alleging that the use of an Additional Service in accordance with the Primary Agreement or anySupplemental Terms infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, 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 AgainstYou, 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 Section9.2 (Our Warranties); (ii) obtain a license for your continued use of thatAdditional 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 Primary Agreement or the Supplemental Terms; or (iv) any services other than Additional Services.
10.2 Indemnification by You. Youwill defend us against any claim, demand, suit or proceeding made or broughtagainst us by a third party alleging that your Services Data, or your use ofany Additional Service in breach of the Primary Agreement or the SupplementalTerms, infringes or misappropriates such third party’s intellectual propertyrights, or violates any third party privacy rights (a “Claim Against Us”), andwillindemnify us from any damages, attorney fees and costs finally awardedagainst Us as a result of, or for any amounts paid by us under a court-approvedsettlement of, a Claim Against Us, provided we (a) promptly give youwritten notice of the Claim Against Us, (b) give you sole control of thedefense and settlement of the Claim Against Us (except that you may not settleany Claim Against Us unless it unconditionally releases us of all liability),and (c) give you all reasonableassistance, 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.
Limitation of Liability
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 PRIMARY AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THE PRIMARY AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY BOLD PENGUIN FROM YOU PURSUANT TO THE PRIMARY 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 NOT WITHSTANDING 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).
Governing Law; Jurisdiction
12.1 Agreement to Governing Law andJurisdiction. Each party agrees that the Primary Agreement isgoverned by and shall be construed in accordance with the laws of the State of Ohio,in all respects, without regard to choiceor conflicts of law rules, and that all disputes arising out of or relating tothis Agreement are limited to the exclusive jurisdiction and venue of the stateand federal courts located within Franklin County, Ohio. Each party herebyconsents to and waives any objections with respect to such jurisdiction andvenue.
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 Primary Agreement, including any Additional Services 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 Primary 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, and (2) the Primary Agreement.
13.3 No Waiver. The failure of Bold Penguin to exercise or enforce any right or provision of the Primary Agreement shall not constitute a waiver of such right or provision.
13.4 Severability. If any part of the Primary 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 Primary 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 Primary Agreement without Bold Penguin’s prior written consent, which consent shall not be unreasonably withheld. The Primary 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 Primary 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 Primary 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 Primary 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 Primary Agreement or any Additional Service subscription order form.
13.9. Relationship of the Parties. The parties are independent contractors. The Primary 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 A RISING 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 INANY 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 here under 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. Notices to us shall be addressed to BoldPenguin, 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 physical address associated with the Primary 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 Primary Agreement.
Disclaimer of Warranties
Limitation of Liabilities
Copyright and Trademark
Online Account Access
Bold Penguin Products and Services Disclosure
Applicable Law and Severability
DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BOLD PENGUIN, ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OF ANY KIND WHATSOEVER WHETHER EXPRESS, IMPLIED, ARISING BY LAW, CUSTOM, OR PRIOR ORAL OR WRITTEN STATEMENTS BY BOLD PENGUIN RELATING TO THE CONTENTS OF ANY WEBSITE, PRODUCTS OR SERVICES. BOLD PENGUIN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUIET ENJOYMENT, (WHETHER OR NOT BOLD PENGUIN KNOWS OR HAS REASON TO KNOW OF SUCH PURPOSE). DUE TO TECHNICAL COMPLEXITY, VARIABILITY OF HARDWARE AND SOFTWARE CAPABILITIES, AND THE AVAILABILITY OF PRODUCTS OR SERVICES TO CUSTOMERS BY VARIOUS THIRD PARTY PROVIDERS, BOLD PENGUIN DOES NOT GUARANTEE THAT CUSTOMER’S ACCESS TO OR USE OF OUR WEBSITES, PRODUCTS OR SERVICES WILL AT ALL TIMES BE UNINTERRUPTED OR ERROR FREE. DATA AND REPORTS CONTAINED HEREIN ARE PROVIDED “AS IS” AND BOLD PENGUIN DISCLAIMS ANY WARRANTY OR LIABILITY WITH REGARD TO THE ACCURACY, CURRENTNESS OR COMPLETENESS OF SUCH DATA AND REPORTS. CUSTOMER ASSUMES ALL RISKS OF ITS OR ITS USERS PURCHASE AND SALES TRANSACTIONS WHEN USING THE SERVICE.
LIMITATION OF LIABILITIES
COPYRIGHT AND TRADEMARK
Except where noted, the entirety of the contents contained on our web sites is the property of Bold Penguin, its subsidiaries, affiliated companies or other third parties. The Bold Penguin logo, “BP,” the “Be Bold” phrase, the “Business Insurance Made Simple” phrase, and the names of our products and services contained herein are trademarks, service marks or registered service marks of Bold Penguin Company, Inc., its affiliates or subsidiaries. By virtue of your use of any of our websites, products, or services, you agree not to use our copyrighted content anywhere for any purpose without prior written consent. If you download any content, you hereby agree to keep all copyright or other notices intact. You further agree not to duplicate the look and feel or design of any of our websites without our prior written consent. This includes a prohibition on use of material originating from any Bold Penguin website, product, or service to start a competing company.
If you have an interest in licensing content or providing links from another website not owned or managed by Bold Penguin, we can be reached at firstname.lastname@example.org to make arrangements.
Whenever submitting content to any of the Bold Penguin websites, products, or services, you agree that you are granting us a non-exclusive, universal, perpetual, irrevocable, sublicensable, commercial and non-commercial right to use, distribute, sell, publish, and otherwise make use of the content that you submit to us. You warrant to us that you have the right to grant us this right over the content, and that you will indemnify us for any loss resulting from a breach of this warranty and defend us against claims regarding the same.
ONLINE ACCOUNT ACCESS
Bold Penguin maintains websites for various purposes, including the provision of products and services to our customers and partners. Portions of our sites may be restricted to those with access credentials provided by Bold Penguin. If you have been given an account by Bold Penguin, it is your responsibility to protect the security and confidentiality of those credentials at all times. If you believe someone has inappropriately accessed your account, immediately contact Bold Penguin at email@example.com.
Any unauthorized access to sections of our sites, products or services is strictly prohibited and even the attempted unauthorized access may result in prosecution to the fullest extent of the law.
BOLD PENGUIN PRODUCTS AND SERVICES DISCLOSURE
Bold Penguin makes every effort to ensure the product or service information made available via its websites is accurate as of the time of publication. Products, terms, definitions and other descriptions displayed on all Bold Penguin websites are intended for informational purposes only and do not in any way replace or modify those in any customer agreement or contract. Bold Penguin reserves the right to alter, modify or customize its websites, products or services without notice of any kind, and may, from time to time, provide websites, products and services of different types to different customers. In no way shall the content displayed on any Bold Penguin website represent any type of warranty or guarantee as to merchantability, performance, or appropriateness for a specific purpose of a Bold Penguin product or service.
APPLICABLE LAW AND SEVERABILITY
Last Modified: 5/4/2022
STANDARDS OF CONDUCT
By using or accessing any Bold Penguin website, product or service, you agree to abide by these Standards of Conduct. Bold Penguin reserves the right to limit, suspend or terminate your access to any Bold Penguin website, productor service including but not limited to the exchange and terminal, effectively immediately, if it determines, in its sole discretion, that your use violates or appears to violate these Standards of Conduct.
Being a good member of the Bold Penguin community
Bold Penguin helps insureds, agents and carriers win in commercial insurance through a cooperative ecosystem. You are a member of that ecosystem, not just through your use of our services, but through your engagement with our people, who are an extension of Bold Penguin and an ambassador of our brand. Your good faith and earnest participation as a member of the community is necessary to make new capabilities and opportunities available in our ever-changing world. Through your use of our websites and services, you are committing to use Bold Penguin as your primary quote platform for small commercial insurance and that you will help Bold Penguin make its software and ecosystem better by committing to sincerely engaging and providing feedback on how the community and our software can improve.
Misusing Bold Penguin’s technology for unintended purposes
Bold Penguin expects you to use its websites, products and services only for the purposes for which they are intended, including the quote and bind capabilities enabled on its terminal products. If Bold Penguin identifies use of the rating platform’s capabilities for purposes other than quoting and binding insurance business with carrier partners, such use will constitute a violation of these Standards of Conduct and may also constitute violations of Bold Penguin’s intellectual property rights.
Selling low quality prospects at a rate that indicates abuse
The higher quality of the prospects that you send into our exchange, via the terminal or independently of, the higher your match rate will be and the more money you will make. But, if we detect abuse related to the prospects you send into the exchange, including but not limited to, prospects that you have not properly obtained consent from pursuant to applicable laws (e.g., TCPA,Gramm-Leach-Bliley Act, CAN-SPAM), low quality business class matches, non-unique prospects, etc., such abuse will constitute a violation of these Standards of Conduct.
Providing consistently negative customer experiences for Bold Penguin’s business partners
Each prospect in the exchange represents a Bold Penguin business partner, and as a receive-side partner, you stand in Bold Penguin’s reputational shoes. As such, if we identify repeated or consistent negative customer experiences from you, as a receive-side partner, including, but not limited to, harassing, hostile or abusive behavior of Prospects or other upstream business partners, complaints from regulators, or negative reports from Better Business Bureaus or similar reporting agencies, such behavior may constitute a violation of these Standards of Conduct.