Broker Agent Agreement

Brokerage Agreement

Updated May 27, 2022

This Agreement is made and entered by and between Cover Whale Insurance Solutions Inc. (hereinafter, “CWIS”) and Brokerage Name on Insurance Application (hereinafter, “Broker”), effective on the date this agreement is electronically initialed by the “Broker” on CWIS platform.

WHEREAS, Broker is properly licensed as an insurance broker and/or agent in the states applicable to this Agreement and is legally authorized to place coverage in any and all states where Broker submits for quotes with CWIS; and

WHEREAS, Broker desires to use the services of CWIS in obtaining certain insurance coverage for Broker’s clients; and

WHEREAS, CWIS desires to extend such services to Broker, subject to the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the covenants, promises and obligations contained herein, and for other good and valuable consideration, the parties hereto agree as follows:

SECTION 1: RELATIONSHIP BETWEEN THE PARTIES.

1. Independent Contractor. Broker and its employees are independent contractors and no provision of this Agreement shall be deemed to create an employer and employee relationship between CWIS and Broker.  Broker is responsible for the payment of local, state and federal payroll taxes or contributions to taxes for unemployment insurance, workers’ compensation, social security taxes, or other related protection with respect to Broker and its employees.
2. In the event that Broker is either: i. a Wholesaler and/or Affinity Group; or ii. a sub-agent of a Wholesaler and/or Affinity Group, which has previously entered into a contract with CWIS, it is acknowledged and agreed that CWIS is an open-brokerage, and will treat all such parties accordingly.
3. Advertising. Broker shall not use the name, logo, trade-images or any other proprietary items and identifiers of CWIS in any advertising or promotional materials without CWIS’ prior written approval.
4. No Authority to Incur Expenses. Broker shall not incur any expense or obligation on behalf of CWIS unless previously authorized by an officer of CWIS in writing.
5. Taxes, Fees and Other Charges.  Broker shall be solely responsible for and pay all taxes for all taxes owed on Broker fees paid to the Broker for surplus lines business or any other taxes, fees and charges imposed in connection with this agreement and the operations of Broker levied by any federal, state, county or local government authority.  Broker shall indemnify and hold harmless CWIS regarding any taxes, fees, penalties or other expenses incurred relating to the Broker’s failure to accurately calculate or remit amounts owed by Broker to the appropriate taxing authorities.  Notwithstanding the foregoing, CWIS reserves the right, at its sole discretion, to calculate, collect or invoice any taxes on the Broker fees paid to the Broker for surplus lines business pursuant to the regulation of of such taxes in the jurisdiction where the business is bound.  Broker shall reimburse CWIS for any amounts advanced by CWIS for the obligations of Broker.

SECTION 2: SOLICITATION AND SERVICING OF BUSINESS.

1. Authorization of Broker. Broker is authorized to transmit to CWIS proposals or applications for insurance. Broker is not authorized to quote premiums for any insurance policy sought to be procured through CWIS unless the quotations have been confirmed in writing by CWIS.
2. Binding Coverage. Broker is not authorized to bind any risk or to issue any binder or policy of insurance on behalf of CWIS or the insurers. Any proposal or application submitted by Broker to CWIS for consideration will not become effective for Broker’s clients unless and until specifically confirmed by CWIS in writing to Broker. CWIS and/or the insurers shall have the absolute right to decline any proposal, application for insurance and/or request for insurance transmitted to CWIS by Broker.
3. Cancellation of Coverage. No insurance contract may be returned to CWIS by Broker for flat cancellation unless it is returned prior to the effective date of the contract. Broker is not authorized to cancel any policy and acknowledges that either CWIS or the insurer(s) may cancel any policy on a pro-rata or short rate basis, subject only to the limitations of applicable insurance laws and regulations and the terms of the policy being canceled. Nothing contained in this Agreement shall limit the right of CWIS and/or the insurer(s) to cancel any binder or policy.
4. Accuracy of Documentation. Broker shall: (i) ensure that all applications, forms and other documents prepared and/or submitted in connection with the production and servicing of the business procured through CWIS are properly completed and promptly delivered; and, (ii) check the accuracy of each quotation, binder, policy and other documents received from CWIS and to notify CWIS of any errors or required changes. Broker warrants that the application and all information provided therein or in support thereof is complete and accurate.
5. Best Efforts; Information Disclosure. Broker acknowledges that CWIS does not have a direct relationship with the insured. Broker shall obtain accurate and complete information for use in underwriting the policies and shall promptly disclose to CWIS all material information that Broker obtains regarding any risk submitted or written pursuant to this Agreement. Likewise, Broker shall use its best efforts to ensure that insureds are informed of and comply with all obligations under the policy.
6. No Changes in Forms. Broker shall not alter the terms and conditions of any policy, application or other form used in connection with this Agreement and shall not extend the time for payment of premiums.
7. Responsibility for Renewals. Broker shall provide insured(s) with timely renewal premium quotations; provided that Broker shall not provide any such quotations unless they have been confirmed in writing by CWIS.
8. Premium Indications. CWIS may provide a non-bindable Premium Indications based on limited information. All accounts are subject to underwriting review and approval. CWIS is not responsible for a change in terms or rates that differ from the Premium Indication and the Premium Indication may be withdrawn or amended without prior notice.

 

SECTION 3. PREMIUMS.

1. Collection of Premiums – “Agency Bill” Option: Broker collects down-payment of all premiums, taxes, fees and any or all other charges of any kind whatsoever relating to each policy placed by CWIS for Broker as indicated on the CWIS invoice. If payment is not collectible by Broker from Insured, Broker or CWIS may request cancellation of the policy for non-payment. If Broker (or third-party Premium Finance Company) extends credit to the insured, Broker (or third-party Premium Finance Company) does so at its own risk and premiums shall be paid by Broker to CWIS when due, whether or not they are collected by Broker (or third-party Premium Finance Company).
2. Collection of Premiums – “Direct Bill by Cover Whale” Option: “Direct Bill” means the Broker is not involved at all with the collection of down-payment, premiums, taxes, fees and any or all other charges of any kind whatsoever relating to each policy placed by CWIS for Broker as indicated on the CWIS invoice. Instead, CWIS, or its appointed agent, collects down-payment of all premiums, taxes, fees and any or all other charges of any kind whatsoever relating to each policy placed by CWIS for Broker as indicated on the CWIS invoice. If payment is not collectible by CWIS from Insured, Broker or CWIS may request cancellation of the policy for non-payment. If CWIS (or third-party Premium Finance Company) extends credit to the insured, CWIS (or third-party Premium Finance Company) does so at its own risk.
3. Premium Trust Fund Account. The premium for each policy is the property of CWIS and/or the insurer(s) and, until delivered to CWIS, shall be held by Broker in a fiduciary capacity in a Premium Fund Trust Account at a financial institution which is federally or state insured. Broker shall comply with all applicable state insurance laws and regulations governing the maintenance of a Premium Fund Trust Account and the books and records related thereto.
4. Earned Premium. Earned premium shall be computed and charged on every policy, binder, certificate, cover note and endorsement canceled after inception in accordance with the cancellation provisions of such document.
5. Non-Refundable Fees – Broker hereby agrees that any fees, including but not limited to policy fees, administration fees or underwriting fees, and taxes are 100% non-refundable when bound. Fees are upfront underwriting expenses which are 100% earned when bound and will not be refunded.
6. Adjustable or Auditable Premiums- Notwithstanding anything to the contrary herein set forth, in the situation where premiums for a policy or policies which have been issued cannot be fully determined in advance and where an adjustment or determination is made by an audit, retrospective rating or by interim reports are fully earned and due at the invoice date as evidenced by a CWIS or insurance company invoice, Broker will make all reasonable efforts to collect amounts due. Broker will be relieved of responsibility for premium, so adjusted or determined, if Broker notifies CWIS in writing within 15 days after said invoice date, stating that Broker has made diligent efforts and is unable to collect such premiums and if and only if the Insurer releases CWIS of liability for such premium. A copy of the Broker’s invoice to the Insured, as well as copies of correspondence pertaining to the collection, must be sent with this notification. Failure to give CWIS timely notice shall constitute Broker’s acceptance of responsibility to pay such premiums. If commission applies to these adjustments, none will be allowed to Broker on premiums collected directly by CWIS or Insurer under this provision.
7. Ownership of Expiring Policies – In the event of termination of this Agreement and provided Broker has accounted for and paid to CWIS all premiums and other monies due in accordance with the terms of this Agreement, the use and control of expirations on business written under this Agreement shall remain the property of the Broker. If a proper accounting and payment has not been made, the ownership of the records and the ownership of the right of use and control of the expirations shall vest in CWIS.
8. Direct Collections – If, after the expiration of sixty (60) days from the date liability was assumed by the insurance carrier, CWIS has not received payment due for the applicable coverage, CWIS may, at its option, collect from the Insured the premium due. In the event CWIS collects the premium or any part thereof from the Insured, Broker shall not be entitled to any commission on the premium collected. Attempts by CWIS to collect from the Insured shall not relieve Broker of liability to CWIS except to the extent of amounts actually collected by CWIS from the Insured, less the expense of such collection.

 

SECTION 4. REMITTANCES AND COMMISSIONS.

1. Remittances. All premiums, less Broker’s commission, on all agency-billed business placed by Broker through CWIS shall be paid directly to CWIS in accordance with the invoice.
2. Commissions. CWIS agrees to allow Broker to retain commissions on coverage placed by Broker through CWIS in accordance with the rate of commission set forth on the premium quotation document. However, Broker shall not retain, and CWIS shall not be obligated to pay, a commission to Broker with respect to any particular policy unless Broker is current in the payment of all premiums, fees or other amounts due under the terms of this Agreement. Accordingly, if Broker fails to remit, when due, any portion of the premiums, fees or other amounts due on any statement issued by CWIS to Broker, then CWIS shall be entitled to the payment of any of the commissions that may be credited to Broker on said account statement and Broker shall pay the gross amount shown as due from Broker on said account without any reduction for commissions to which Broker would otherwise be entitled. All commissions that remain unpaid to Broker solely because of the provisions of this SECTION 4(B) shall be paid to Broker if and when Broker pays all amounts then due or past due to CWIS.

 

SECTION 5. CLAIMS AND REPORT OF LOSSES.

1. Broker has no authority, either express or implied, to adjust, settle, accept liability, or otherwise handle claims on behalf of the insurer(s) or CWIS.
2. Broker and/or the insured shall comply with the policy terms and conditions relating to the reporting of claims and potential claims to insurer. Failure to report claims in timely fashion to Insurer may affect coverage and ability to adjust claim.
3. Broker shall report all claims to CWIS within 48 hours of being informed of a claim or loss event. Failure to report claims in timely fashion to CWIS may affect coverage and ability to adjust claim.  This reporting of claims or loss events to CWIS shall not alleviate the responsibility of the insured and/or Broker to comply with the policy terms relating to the reporting of claims, loss events or potential claims to insurer.

 

SECTION 6. INDEMNIFICATION.

1. Indemnification by Broker. Broker shall defend, indemnify, and hold harmless CWIS:
   
   1. for any loss or liability arising out of any breach by Broker of this Agreement and/or any loss or liability arising out of Broker’s negligence or intentional misconduct; and,
   2. for any loss or liability arising out of any failure by Broker to procure, maintain, renew or otherwise comply with licensing requirements, regulations, and laws in any state that Broker conducts business that involves CWIS; and,
   3. for any reasonable costs of collecting amounts due from Broker under this Agreement, legal fees incurred in connection with the enforcement of CWIS’s rights under this Agreement, and cost of any returned checks remitted to CWIS by Broker; and,
   4. from and against any claims, suits, losses, expenses, regulatory inquiries, regulatory actions, or causes of action filed against CWIS by reason of any act, error or omission of Broker relating to the services provided by Broker under the terms or the conditions of this Agreement; and, from and against any claims, suits, losses or expense made by the insured relating to an alleged act, error or omission by Broker in its processing or handling of any policy or claim under any policy.
2. Indemnification by CWIS. CWIS shall defend, indemnify, and hold harmless Broker:
   
   1. for any loss or liability arising out of any breach by CWIS of this Agreement and/or any loss or liability arising out of CWIS’s negligence or intentional misconduct; and,
   2. from and against any claims, suits, losses, expenses, or causes of action filed against the Broker by reason of any act, error or omission of CWIS relating to the services provided by CWIS under the terms or the conditions of this Agreement; and,
   3. from and against any claims, suits, losses or expense made by the insured relating to an alleged act, error or omission by CWIS in its processing or handling of any policy.

 

SECTION 7. REGULATORY COMPLIANCE.

1. Maintenance of Licenses. Broker warrants that it is properly licensed in all states relevant to the business placed through CWIS and that such licenses are valid and in force at the time any insurance contract is solicited, negotiated, offered and accepted hereunder commences or is renewed.
   
   1. Broker shall supply CWIS with a copy of Broker’s current insurance licenses in these states before any commissions are paid.  Additionally, Broker shall supply CWIS with notification of renewal for all insurance licenses accompanied by a copy of the renewal confirmation.  Failure to supply update and or renewal information shall result in a withholding of commission by CWIS.
   2. Broker shall promptly notify, within 5 days of issuance of notice to Broker, CWIS of any suspension, non-renewal, cancellation or disciplinary action in respect to its license(s) and agrees that, if Broker breaches this warranty and requirement to maintain the aforesaid licenses, whether or not copies of such licenses are provided to CWIS, Broker shall indemnify and hold harmless CWIS for any losses, claims, expenses, reasonable attorneys’ fees, penalties or fines CWIS incurs arising therefrom.
   3. Broker shall notify CWIS if they, or the business entity, are not properly licensed in any state for either admitted or surplus lines insurance.  In addition to notification to CWIS, Broker shall prohibit the solicitation, negotiation, and sale of insurance, or cease any and all activities related thereto, in these states until proper licensure is in place and proof of same is provided to CWIS.
   4. Broker shall notify CWIS if they, or the business entity, are restricted or limited in their ability to transact, solicit, bind, or secure insurance in any applicable state.  If any of these restrictions are in effect, Broker shall not conduct any business that would be in contravention to these restrictions.  Broker shall provide notice to CWIS in the event that any of these restrictions are removed and agrees to fully cooperate with CWIS in determining Broker’s ability to resume operations
2. Compliance with Law. Broker and their respective business entity agrees to comply with all state insurance laws and regulations, including any applicable countersignature and surplus lines laws and regulations, which affect the business written hereunder.
3. Notice of Regulatory Inquiries or Complaints. Broker shall give CWIS immediate written notice of Broker’s receipt of any inquiry or complaint from any regulatory authority pertaining to any policy of insurance placed through this Agreement.  This written notice shall contain a copy of the inquiry or complaint.  If none is available, Broker shall provide sufficient information in its notice to CWIS as to the nature of the inquiry or complaint, as well as any deadlines or other time requirements imposed by the regulatory authority.
4. PRIVACY POLICY. Neither Broker nor CWIS shall disclose or use Nonpublic Personal Information (as that term and similar terms are defined in the Gramm-Leach-Bliley Act, 15 U.S.C. Section 6801 et. seq. and the applicable state insurance laws and regulations enacted or adopted pursuant to the Gramm-Leach-Bliley Act [individually and collectively, the “Act”]) that is received from or collected on behalf of either Party except as necessary to permit the Parties to perform their duties under this Agreement, or as otherwise permitted or authorized by the ACT. Both Parties shall implement and maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of such Nonpublic Personal Information.
5. Data Privacy and Security.  Broker shall comply with all of the Data Privacy and Security requirements of CWIS, as set forth in the attached schedule and as amended from time to time by CWIS.  The Parties agree that amendments to CWIS’ Data Privacy and Security requirements made by CWIS will not require reissuance of this Agreement, and the requirements, as amended, are incorporated herein.
6. Compliance with Code of Conduct.  Broker shall execute and comply with all of the requirements set forth in the Code of Conduct Schedule attached hereto.  Failure to abide by these requirements shall be determined to be a material breach of Broker’s obligations hereunder.

 

SECTION 8. ERRORS AND OMISSION COVERAGE.

1. Broker shall maintain in force during the period of this Agreement professional errors and omissions insurance with limits of at least One Million Dollars ($1,000,000) each claim/Two Million Aggregate ($2,000,000), written with an insurance company rated A- or better by AM Best.
2. Broker shall immediately advise CWIS of any claim or potential claim under said policy which in any way: (i) relates to or may affect CWIS or any policy procured by CWIS for Broker; or (ii) is reasonably anticipated to exhaust the “each claim” and/or aggregate limit of Broker’s professional errors and omissions insurance coverage.
3. Broker shall provide a copy of the declarations page of the said policy to CWIS annually and shall provide prompt written notice to CWIS of any change, cancellation, or other termination of said policy.

 

SECTION 9. TERMINATION.

1. Termination. Either Party may terminate this Agreement without cause by giving thirty (30) days written notice to the other. In addition, either Party may terminate this Agreement immediately by giving the other written notice in the event of the other’s insolvency, fraud, willful misconduct, non-payment or breach of any other terms and provisions of this Agreement. Any termination of this Agreement shall not affect the respective rights or liabilities of either Party accruing up to the date of termination, nor shall it affect premium or commission payments on in-force business until such business has expired and all applicable premium and commission matters relating to such business have been resolved.
2. Additional Payments. After the date of the termination of this Agreement:
   
   1. CWIS shall pay Broker commissions on additional premiums collected and remitted to CWIS provided that such commissions are due and payable to Broker in accordance with SECTION 4 (B) above; and,
   2. Broker shall remit to CWIS any return commissions attributable to canceled policies or return premiums.

 

SECTION 10. EXPIRATIONS & RESTRICTION.

In the event that (i) this Agreement is terminated; and, (ii) Broker pays CWIS all amounts due CWIS within fifteen (15) business days of Broker’s receipt of CWIS’s invoice, the use and control of the expirations relating to the policies shall remain the property of Broker and be left in Broker’s undisputed possession. Otherwise, the records, use and control of all expirations shall be vested in CWIS.

 

SECTION 11. MISCELLANEOUS. 

1. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Broker agrees to be subject to the personal jurisdiction of and service of process through the courts of such State including the federal district courts located in such State in any action relating to this Agreement or the matters referred to herein.
2. Severability: If any provision of this Agreement is declared or determined to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said unenforceable or invalid provision shall be deemed not to be part of this Agreement. If any provision of this Agreement is unenforceable or invalid, then a suitable and equitable provision shall be substituted in order to carry out, so far as may be enforceable and valid, the intent and purpose of the unenforceable or invalid provision.
3. Entire Agreement/Amendments: This Agreement constitutes the entire agreement among the Parties and supersedes any and all other agreements, either oral or in writing, among the Parties hereto with respect to the subject matter hereof. This Agreement may be revised only through a writing signed by Broker and CWIS.
4. No Waiver: The failure of CWIS or Broker to insist upon performance of the rights or conditions of this Agreement shall not constitute a waiver of such rights or conditions.
5. No Assignment: Broker shall not transfer or assign any right, benefit, or interest under this Agreement without the prior written consent of CWIS.
6. Counterparts: This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
7. Notice: Any notice required to be provided to CWIS pursuant to this Agreement shall be sent by overnight or certified mail, Return Receipt Requested, to the following: Cover Whale Insurance Solutions, 180 Maiden Lane, New York, NY 10005.
8. Tax Documentation: Broker shall provide a completed Form W-9 Request for Taxpayer Identification Number and Certification.
9. Limitation on Liability.  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SALE OF PRODUCTS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

 

SECTION 12. ALTERNATIVE DISPUTE RESOLUTION. 

1. ALTERNATIVE DISPUTE RESOLUTION. THE PARTIES TO THIS AGREEMENT HEREBY EXPRESS THAT ALL DISPUTES, CONTROVERSIES OR CLAIMS OF ANY KIND AND NATURE BETWEEN THE PARTIES HERETO, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ITS INTERPRETATION, PERFORMANCE OR BREACH, SHALL BE RESOLVED EXCLUSIVELY BY THE FOLLOWING DISPUTE RESOLUTION MECHANISMS:
   
   1. Negotiation – The Parties hereto shall first engage in a good faith effort to negotiate any such controversy or claim by communications between them. Said negotiations may be oral or written. To the extent they are oral, they must be confirmed in writing.
   2. Mediation – Should the above-stated negotiations be unsuccessful, the Parties shall engage in mediation pursuant to the American Arbitration Association Commercial Mediation Rules, or such other mediation rule as the Parties may otherwise agree to choose.
   3. Arbitration – Should the above-stated mediation be unsuccessful, the Parties shall agree to arbitrate any such controversy or claim with the express understanding that this Agreement is affected by interstate commerce in that the goods and services which are the subject matter of this Agreement pass through interstate commerce. Said arbitration shall be conducted pursuant to the American Arbitration Association Commercial Arbitration Rules (the “Arbitration Rules”) or such other arbitration rule as the Parties may otherwise agree to choose.
   4. Injunctive Relief – Notwithstanding anything to the contrary herein, CWIS shall have the right to apply at any time to a court of competent jurisdiction to enjoin any breach of this Agreement that would be deemed material and would result in immediate and irreparable injury to CWIS, which is, not properly or completely compensable by damages in an action at law, and to recover all costs of such action, including reasonable attorney’s fees. All of the rights and remedies of CWIS hereunder shall be cumulative and not alternative.
2. THE PARTIES UNDERSTAND AND AGREE: (i) THAT EACH OF THEM IS WAIVING RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL; (ii) THAT PRE-ARBITRATION DISCOVERY IN ARBITRATION PROCEEDINGS IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS; (iii) THAT THE ARBITRATORS’ AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING, AND (iv) EITHER PARTY’S RIGHT OF APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS, IS STRICTLY LIMITED. THE VENUE FOR MEDIATION AND/OR ARBITRATION UNDER THIS SECTION SHALL BE IN THE STATE OF DELAWARE.

 

SECTION 13. ELECTRONIC POLICY DELIVERY SYSTEM AUTHORIZATION

1. Broker expressly authorizes Cover Whale Insurance Solutions, Inc. and CWIS to e-mail policies to the original producing/requesting agent.
2. CWIS will email the policies upon issuance to an email address designated by Broker. CWIS will email all policies and communication to the original producing/requesting agent.  Broker agrees to add coverwhale.com to its list of “Safe Senders” to facilitate proper delivery of policies.
3. Notwithstanding the foregoing, CWIS is not liable for non-delivery of email communication.

 

SECTION 14. EXECUTION & ACCEPTANCE OF AGREEMENT

1. The CWIS electronic submission requested the Broker to Agree or Decline this Broker Agreement.
2. A link to this document was provided for review to the Broker and it can be viewed on the website or Broker can request the document from CWIS at [email protected].
3. Broker acknowledges that a breach of any of the terms, conditions, or provisions of this Agreement by the Broker may give rise to a cause of action by CWIS against the Broker and/or may result in disciplinary action by CWIS, including but not limited to, the termination of this Agreement, all in the sole discretion of CWIS.