TERMS AND CONDITIONS
OF BOLD PENGUIN

General TermsExchange Terms

Exchange Terms

AGREEMENT

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 TERMINAL

Bold Penguin agrees to provide an interested party (a “Participant”) access to its online platform (the “Terminal”) in return for Participant’s payment of a Monthly Subscription Fee. If applicable, Participant agrees that Bold Penguin may deduct from any amounts owed by Bold Penguin to Participant the monthly subscription fee amount. Subscription fee amounts may be subject to change with 60 days’ notice to Participant. Additionally, Participant agrees to the Terms of Service and the Privacy Policy published at http://www.boldpenguin.com/terms-and-conditions, and the terms contained in those policies are otherwise incorporated herein.

‍INSURANCE PRODUCTS

Participant shall be solely responsible for the sale of insurance products.

LICENSURE

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.  

VERIFIED PROSPECT

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.

‍CALL TRANSFER

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.

PROSPECT INVENTORY

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. 

DISPOSITION

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

Unless otherwise agreed to by Bold Penguin and Participant, Participant shall pay Bold Penguin an initial 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 SETUP FEES

Upon termination of the Agreement, with or without cause, Bold Penguin will refund to Participant within sixty (60) days any remaining unused Deposit balance. Setup Fees and Monthly Subscription Fees Participants pays to Bold Penguin are nonrefundable.

‍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.

‍PAYMENT SCHEDULE

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 10 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.  

‍SET OFF

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.

‍PROSPECT RELATIONSHIP

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.

INDEMNIFICATION

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.

‍FORCE MAJEURE

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.

NOTICES

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.

WAIVER

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.

COUNTERPARTS

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.

‍BINDING EFFECT

This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.

ASSIGNMENT

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.