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.
These terms incorporate by reference an accompanying executed Order and together, embody the entire understanding between the parties regarding the subject matter hereof (the “Agreement”). All prior or contemporaneous correspondence, proposals, offers, or conversations are merged in and replaced by this Agreement, and are without any force or effect whatsoever. No change, alteration, or modification may be made except in a writing that expressly refers to this Agreement and is signed by both parties.
BOLD PENGUIN PLATFORM
Bold Penguin reserves the right, to be exercised in its sole discretion, to immediately suspend Participant’s access to The Exchange for any billing delinquency. The Parties shall work in good faith to resolve Participant’s violation before access is restored to Participant. If good faith resolution is not achieved in a reasonable amount of time, as determined in Bold Penguin’s sole discretion, Bold Penguin shall have the right to terminate Participant’s access to The Exchange permanently without penalty or further obligation to Participant.
For any third party who is accessing Bold Penguin’s online platform pursuant to a sponsorship or other. arrangement allowing it to gain access to The Exchange without directly paying a Monthly Subscription Fee to Bold Penguin (“Non-Paying Party”), should that arrangement be discontinued, the Non-Paying Party shall have the opportunity to continue accessing The Exchange at then-prevailing market rates.
Participant shall be solely responsible for the sale of insurance products.
Licensee represents that it has a valid license to sell insurance in each jurisdiction in which Prospects it sells insurance to pursuant to this Agreement reside. Licensee covenants that it will maintain a valid license in each jurisdiction concerning which Licensee is requesting Prospects. Bold Penguin may request from time-to-time that Licensee provide copies of Licensee’s valid licenses. Licensee represents that it presently acts, and covenants that it will at all times act, in compliance with all insurance laws and regulations applicable to its conduct of business under this Agreement.
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 otherwise provide service to present or future Policyholders.
TERM AND RENEWAL
Participant access to the Exchange commences upon receipt of payment and shall continue for one year (the “Term”) or until terminated as otherwise provided in these Terms. Access under these Terms shall automatically renew for additional one-year periods unless either Party gives notice to the other Party not less than 60 days before the expiration of the then-current term.
TERMINATION WITHOUT CAUSE
Either Party may terminate the subscription Access at any time, without cause and without penalty, by giving the other Party not less than sixty (60) days’ prior written notice of termination.
TERMINATION WITH CAUSE
Bold Penguin may terminate subscription access immediately upon written notice to if the Participant party fails to pay any amount due and owing pursuant to the Agreement. Either party may terminate if the other party breaches any term or condition of this Agreement, provided that the other party has been given written notice of the breach and has not cured such breach within sixty (60) days after receipt of such notice.
PROSPECTS – DEFINED
Through the Exchange, Participant can connect small businesses looking for commercial insurance (“Prospects”) with expert producers and can target those Prospects through custom filtering so Participant’s expert producers can focus on being trusted advisers for the right insurance.
A “Verified Prospect” is a potential client of Participant interested in purchasing one or more commercial insurance products offered by Participant. Participant is solely responsible for identifying on the Exchange platform or in writing to Bold Penguin the business categories, coverage types and locations acceptable to Participant.
For a subscription to the Exchange that includes receiving call transfers, Bold Penguin will provide certain Prospects to Participant through Bold Penguin’s Exchange. Bold Penguin will deliver Verified Prospects to a Participant via call transfer. Bold Penguin will make a call transfer by telephone to an authorized representative of Participant following mutually-agreed work flows and operational protocols. Bold Penguin will provide data regarding each Prospect through Bold Penguin’s Terminal or as otherwise agreed by the parties.
For a subscription to the Terminal that includes Bold Penguin’s Prospect Inventory, Bold Penguin will provide Participant the ability to browse and receive Prospect information from Bold Penguin’s inventory of Verified Prospects.
Participant agrees to provide the disposition status of each Prospect that Participant receives from Bold Penguin through an automated technical integration acceptable to Participant and Bold Penguin. Participant understands that Bold Penguin may, in its sole discretion, chose not to provide Prospects to Participant where Participant does not communicate the disposition of Prospects through an automated technical integration. Should Bold Penguin so elect, the Participant will report back on the status of each interaction taken on each Prospect transferred to Participant by Bold Penguin. Participant understands that Participant’s failure to report on the status of a Prospect may result in Participant’s inability to receive Prospects and could also adversely affect Participant’s Prospect bids.
BOLD PENGUIN DEPOSIT
Participant understands that Bold Penguin in its sole discretion, reserves the right to require Participant to pay an initial deposit (“Security Deposit”) for the delivery of Verified Prospects. Bold Penguin will reduce the balance of Participant’s deposit balance by the cost of Prospects purchased by Participant. Participant understands that Bold Penguin may require Participant to maintain a minimum deposit to receive Prospects.
DEPOSIT BALANCE AND FEES
Upon termination of the Agreement, with or without cause, Bold Penguin will pay to you any funds due to You (“Balance Owed”) within sixty (60) days of the effective date of termination ("Termination Effective Date”). Notwithstanding the foregoing, if you owe Bold Penguin any funds on the Termination Effective Date (“Balance Due”), you expressly authorize Bold Penguin to reduce the Balance Owed by the Balance Due and, if necessary, invoice you for (or charge your credit card on file or debit your bank account via ACH, as applicable) any remaining Balance Due. You acknowledge that Licensing Fees and Subscription Fees are nonrefundable. Bold Penguin reserves the right to require Participant to reimburse Bold Penguin for any and all bank fees, including but not limited to, service fees and wire transfer fees.
PROSPECT FILTERS AND BID AGGRESSION
Participant and Bold Penguin will work together to set and adjust Participant’s Prospect filters. Participant and Bold Penguin will work together to select and adjust Participant’s bid aggression.
Unless otherwise agreed by Bold Penguin and Participant, Participant shall pay Bold Penguin amounts owed under this Agreement by electronic transfer or wire transfer any deposit prior to initiation of access, which shall be on or about the Signature Date on any Order or Agreement signed between the parties. Thereafter, if applicable, Participant is responsible for continued funding of its balance at Bold Penguin to maintain a minimum deposit balance as specified by the parties in the Order.
PARTICIPANT DEPOSIT CREDITS
Bold Penguin agrees to credit Participant’s deposit balance for any Prospects purchased by Participant that (1) are not Verified Prospects, (2) when the Prospect’s contact information is materially incorrect, or (3) if the Prospect is not seeking an insurance quote. To receive a credit, Participant must request a credit from Bold Penguin in writing within 7 business days of the date Participant purchased the Prospect and Bold Penguin must validate Participant’s claim.
PAYMENT OF PURCHASED PROSPECTS
Bold Penguin treats a Prospect delivered via phone transfer as “purchased” by Participant when the Bold Penguin matches a Prospect to Participant using Participant’s filter criteria. A purchase reduces Participant’s deposit balance. For clarification, multiple conversations conducted with the same Prospect are considered a single purchase. For further clarification, Participant has purchased a Prospect even where Participant’s Sale Call Center declines to quote or sell an insurance policy to a Prospect. Further, Bold Penguin treats Participant’s receipt of Prospect information from Bold Penguin’s inventory of verified prospects as a purchase.
Participant may not deduct from any amount due and owing from Participant to Bold Penguin, and thereby satisfy, in whole or in part, any indebtedness or other amount due to Participant from Bold Penguin. The provisions of this Section shall survive the termination of this Agreement.
Once Participant receives a Prospect, the Prospect information becomes property of Participant and the Participant shall be free to communicate with the Participant in any manner Participant deems necessary, including re-solicitation. This Section shall survive the termination of any relationship.
Participant (the “Indemnitor”) shall indemnify, defend, and hold harmless Bold Penguin, its affiliates, and their officers, directors, employees, and agents (the “Indemnified Parties”) for and from any and all third party losses, liabilities, damages, actions, claims, demands, settlements, judgments, and any other expense including, but not limited to, attorneys’ fees and expenses (collectively, “Damages”), which are asserted against, incurred or suffered by the Indemnified Parties and which arise out of: (a) the violation of any law, regulation, or other legal mandate, by the Indemnitor, its officers, directors, employees, or agents; (b) the breach by the Indemnitor, its officers, directors, employees, or agents of any covenant, condition, warranty, or representation contained in this Agreement; (c) the negligence, gross negligence, or willful or wanton misbehavior of the Indemnitor, its officers, directors, employees, or agents; or (d) any actual or alleged infringement by Indemnitor or its officers, directors or employees (and any materials provide hereunder by such parties) of a third party’s copyright, trade secret or other intellectual property rights; provided, however that the Indemnitor’s indemnification obligations shall be reduced to the extent that such Damages arise from the acts or omissions of the Indemnified Parties.
RELATIONSHIP OF THE PARTIES
The parties’ relationship to one another under this Agreement is, and shall remain at all times, that of independent contractors. Neither party is responsible for the debts and liabilities of the other. Nothing shall be deemed to create any form of principal-agent relationship, partnership, or joint venture between the parties.
STANDARD OF CARE
Each party will hold the other party's Confidential Information in confidence and will safeguard it in at least the same manner as a prudent business person would safeguard his or her own Confidential Information. The party receiving Confidential Information will not, and will not permit any of its officers, directors, employees, or agents (collectively, “Agents”) to, directly or indirectly, report, publish, distribute, copy, disclose, or otherwise disseminate the Confidential Information, or any portion thereof, to any third party, and will not use, or permit any of its Agents to use, the Confidential Information, or any portion thereof, for the benefit of itself, its Agents, or any third party, or for any purpose, except as expressly authorized in writing by the disclosing party. Disclosure will be limited to those Agents who must examine the Confidential Information in order to perform this Agreement.
Except for Participant’s payment obligations to Bold Penguin, no party shall be deemed to be in default of any provision of this Agreement for any failure in performance resulting from acts or events beyond the reasonable control of such party (“Force Majeure Events”). Such acts shall include, without limitation, acts of God, civil or military authority, civil disturbance, war, strikes, labor disputes, fires or other catastrophes, or other force majeure event beyond the party's reasonable control. In the event of any Force Majeure Event, the disabled party shall use all reasonable efforts to meet its obligations as set forth in this Agreement.
All notices shall be delivered personally, via facsimile with transmission confirmation, by overnight courier, by certified U.S. mail, return receipt requested, or via electronic mail to the parties at the addresses identified in the Agreement.
No waiver or modification of this Agreement or any covenant, condition, or limitation herein contained shall be valid unless in writing and signed by all parties. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding, unless such waiver or modification is in writing and signed as aforesaid. The provisions of this Section may not be waived except as herein set forth. The failure to insist upon strict compliance with this Agreement shall not be deemed a waiver nor shall any waiver of any right or power hereunder, at any one or more times, be deemed a waiver of such right or power at any other time or times.
This Agreement may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute but one and the same instrument.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
Neither this Agreement nor any rights or duties hereunder may be assigned or delegated by either party without the prior consent in writing of the other party. Each party shall provide to the other party such information relating to any permitted assignments or delegations hereunder, as reasonably requested by the other party.