WHEREAS, the Agency desires to utilize the products, services, and facilities of Indium which Agency and Indium acknowledge are incorporated herein, and WHEREAS, Indium agrees to extend such Products and Services, subject to the terms and conditions set forth below. NOW THEREFORE, in consideration of the mutual promises and covenants herein set forth. For other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.1 Agency represents and warrants that it is authorized to enter into this Agreement. Agency represents and warrants that it is properly licensed to transact all business as an agent or broker in accordance with all of the insurance laws of the state or states in which the Agency transacts such business.
1.1.1 Agency represents and warrants to Indium that the Agency will not (i) bind Indium and/or any of the insurance companies and/or partner companies that Indium makes available to the Agency to provide to the Agency’s customers, without the prior written authorization of the applicable insurance company; or (ii) place any advertisement, in any medium currently existing or existing at any time during the term of this Agreement, or issue or distribute any circular or paper, involving Indium or any insurance company, without the prior written consent of Indium or the applicable insurance company, as the case may be.
1.1.2 Agency represents and warrants that it is not a member of nor a participant in, directly or indirectly, any agency network organization or entities that share markets that would be deemed a competitor of and/or competitive with the business of Indium, and/or such that it creates adverse selection for Indium and our carrier partners.
1.1.3 Agency further warrants and represents that Agency’s involvement with Indium will not constitute a breach of any agreement or covenant to which Agency is a party or a breach of any obligation by which Agency is bound.
1.1.4 Agency represents and warrants that its legal entity and business purpose is compliant with this Agreement and relationship with Indium and its carrier partners, and will notify Indium within 30 days of all changes of agency purpose and/or legal entity status (i.e. via merger, acquisition, perpetuation, consolidation, divestiture, clustering etc.) and will provide Indium upon request all information deemed necessary to be in good standing with our partnership under this Agreement, which will be subject to review and approval to continue as an approved member agency.
1.1.5 Agency hereby agrees to indemnify, defend, and hold Indium harmless from and against any loss, damage, or claim including attorney’s fees incurred by Indium as a result of Agency’s breach of the warranties and representations set forth in this Agreement.
2.1 The Agency shall obtain, keep and maintain in good standing any and all licenses necessary to transact all business as an agent or broker in accordance with all the insurance laws of the state or states in which the Agency transacts such business. Upon Indium’s annual request, the Agency will promptly provide Indium with a copy of all resident and non-resident corporate, agency, and/or individual agent, broker, producer, or other similar licenses held and maintained by the Agency.
3.1 Agency shall obtain, keep and maintain during the entire term of this Agreement errors and omissions insurance coverage in force that the Agency maintains for itself and its officers and employees, with an annual policy limit of not less than $1,000,000. Upon Indium’s request, the Agency will promptly provide Indium annually with evidence to Indium’s reasonable satisfaction of errors and omissions insurance coverage in force that the Agency maintains for itself and its officers and employees, with an annual policy limit of not less than $1,000,000. All errors and omissions insurance coverage contemplated under this Section 3 will be issued by insurers with an A.M. Best rating of equal to or greater than A.
4.1 Under this Agreement, Indium provides approved agency partners (the “Agency”) within its network, in the business of selling Property and Casualty insurance products, access and product placement services to leading insurance carriers who develop, underwrite and service all kinds of insurance products. These services include, but are not limited to: front-line underwriting, sub-code administration and management, policy servicing, and billing services on behalf of insurance carriers and our approved member agents who sell to current and prospective insurance consumers.
4.2 Indium shall have the absolute right to decline any business offered by the Agency, and no provision of this Agreement shall be construed as permitting the Agency to bind any risk which has not been authorized in writing by Indium or to hold himself or herself out as an agency or employee of
5.1 Payment of Annual Partnership Fee
5.1.1 Agency acknowledges that Indium shall charge Agency on an annual basis the fee set forth here in Exhibits A or B, related to the Premier Partnership Agreement or the All-Access Partnership Agreement, billed and paid-in-full annually at a discounted rate, or billed and paid in the respective installments, in association with those respective products and services set forth in Exhibits A or B attached hereto, and that payment is for a twelve (12) month term, subject to proration based on an annual renewal effective July 1st of each year, and as agreed upon between Agency and Indium.
5.1.2 Agency shall remit payment of the fee in United State dollars by valid bank check, bank credit card or ACH payment on terms to be agreed upon between Agency and Indium.
5.1.3 Agency acknowledges that the fees are non-refundable to the Agency and that the Agency shall not be entitled to receive the services from Indium as provided herein until Indium has received payment.
5.1.4 Agency acknowledges that failure to pay any invoiced amount related to the annual Partnership fee by the stated due date and within any subsequent grace period, will result in termination of our Partnership Agreement, and fees will be incurred to reinstate our Partnership Agreement, per section 6 (“Termination and Reinstatement”).
18.104.22.168 If the contract has been signed, but the Invoice remains unpaid 30 days past due, a 10% Late Fee will be added to the Invoice.
5.1.5 Agency acknowledges their responsibility to pay annual partnership feesin full should they chose to cancel their partnership with Indium, per Section 6 (“Termination”) at any point during the contract term.
5.1.6 A la Carte solutions for either agreement will be paid in full at the time of selection.
5.1.7 Agency may opt into the All-Access Partnership Agreement type at any time, while a current agency partner, and Agency acknowledges:
22.214.171.124 Agency must promptly notify Indium of their decision to switch Partnership Agreement types, per the “Notices” section below, and Agent acknowledges their new partnership agreement will go into effect immediately upon receipt of notification.
126.96.36.199 If Agency opts to switch to the All-Access Partnership Agreement mid-term, Agent acknowledges they will be responsible for paying the pro-rated difference in their Partnership fee, to reflect the duration of the current annual term.
5.1.8 For automatic payments, Agency acknowledges:
188.8.131.52 Partnership Agreements automatically renew on an annual term unless Agency provides Indium with advanced notice of at least thirty (30) days prior to the end of the current term period, per section 6 (“Termination”).
184.108.40.206 Agency will provide Indium with valid credit card or bank account information to facilitate timely payments and authorizes Indium to charge such accounts for the Partnership renewal term and any renewal subscription term(s) as set forth hereunder this Agreement.
220.127.116.11 Payments shall be made annually or in accordance with any billing frequencies stated and agreed to in the Invoice. If the Invoice specifies that payment will be by a method other than a credit card or ACH, Indium will invoice Agent in advance and in accordance with the Invoice.
18.104.22.168 Unless otherwise stated in the Invoice, Partnership Fees are due on the invoice date.
22.214.171.124 Agency is responsible for providing complete and accurate billing and contact information to Indium and notifying Indium of any changes to such information.
5.2 Payment to Indium for fee-based services
5.2.1 Agency acknowledges that Indium shall charge Agency fees associated with agreed upon and specified services performed by Indium on behalf of and/or in support of Agency. Any such fees shall be per a disclosed and published schedule of fee-based services, invoiced accordingly, and paid per payment terms specified.
5.3 Payment of Commissions to Agency
5.3.1 Indium agrees to pay Agency commissions on insurance coverages placed by the Agency through Indium in accordance with the rate of commissions stipulated by Indium. The payment will be made by Indium to the Agency on a once per month basis. In the event that such coverages are cancelled or modified (regardless of whether such cancellation or modification is instituted by the insurance company, the insured, a premium finance entity or by any other person), Agency agrees to pay Indium a return commissions on any return premiums at the same rate at which such return premiums are calculated. Indium will provide a full accounting and details for any cancelled or modified coverages in which the Agency may be required to return commissions. Any return commissions due to Indium from Agency unpaid after 90 days will be automatically swept from the Agency bank account on file. Indium will notify Agency 48 hours prior to sweeping any return commissions. Any banking fees due to insufficient funds resulting from the sweep will be the responsibility of the Agency.
5.3.2 Under this Agreement, commission rates can vary by carrier, by underwriting company, by product and by means through which carrier products are accessed.
126.96.36.199 Commissions paid on insurance coverages placed by Agency through a sub-code access point with carriers represented through Indium will be paid directly to Agency by carrier.
188.8.131.52 Commissions paid on insurance coverages placed through Indium (i.e. “in-house”) and on behalf of Agency will be paid by Indium in accordance with section 5.3.1.
5.4 Payments Regarding Agency Billing/Net Premium
5.4.1 Agency agrees that net premiums (which shall be the gross premium charged by the insurer less Agency’s commission plus applicable taxes and fees) received by the Agency for coverages placed through Indium are the property of Indium and the insurance company underwriting the coverage. Agency shall hold such net premiums in a fiduciary capacity until such time as said
funds are delivered to Indium. Agency further agrees that such fiduciary funds shall not be used by Agency for any other purpose whatsoever.
5.4.2 Indium shall furnish Agency with an invoice setting forth a net premium for each item of coverage which Agency has placed through Indium. Agency shall remit to Indium the amount shown by such invoice to be due Indium on the due date reflected on such invoice. Agency guarantees payment to Indium (in accordance with this Article 5) of all net premiums, including net premiums for coverages placed through Indium, regardless of whether or not such premiums
have been collected by the Agency. Agency further guarantees payment to Indium of all return commissions owed on account of coverage cancellation or modification (in accordance with this Article 5).
5.4.3 In the event of an audit, Agency shall have 30 days from the date Agency receives a billing statement from the insurance carrier related to such audit to collect any premium then due resulting from an audit. In the event that the Agency is unable to collect premiums due within the 30-day time period, Agency shall provide Indium and the carrier notice of the Agency’s inability to collect the premium. The Agency shall provide Indium evidence of the Agency’s efforts to collect the monies owed from the insured to the insurance carrier and Agency agrees to reasonably cooperate with the insurance carrier including providing any information necessary to collect the funds owed to the insurance carrier. Agency and Indium acknowledge that the insurance carrier shall have the right to pursue the insured directly for such premium owed. Provided that the Agency uses reasonable efforts to collect the premium from the insured during the 30-day time-period, upon the expiration of the 30 day time-period, Agency shall be relieved of its obligation to collect the same from the insured. In the event the insurance carrier commences collection of premiums owed resulting from an audit, Agency forfeits all rights to any commissions owed which may have been paid by the insurance carrier resulting from the audit.
6.1.1 Either Indium and/or Agency shall have the right to terminate this Agreement for any reason whatsoever by providing thirty (30) days advance written notice to the other party. Upon the expiration of the thirty (30) day period, this Agreement shall terminate.
6.1.2 If Agency fails to comply with the terms under Section 1.4 and, in accordance with section 7.2, Indium deems this Agreement to have terminated as of the effective date of the change in status to the Agency (i.e. via merger, acquisition, perpetuation, consolidation, divestiture, clustering etc.).
6.1.3 If Agency fails to comply with the payment terms as stated under Section 5.1 (“Payment of Annual Partnership Fee”), Indium deems this Agreement to be terminated as of the effective date of this Agreement.
6.1.4 Upon termination of this Agreement:
184.108.40.206 Agency will no longer have access to write new business through Indium and/or associated agency subcodes with respective insurance carriers.
220.127.116.11 Agency will be solely responsible to re-market and move existing business, e.g. by way of a direct appointment and/or relationship with another access provider, as of termination date.
18.104.22.168 Agency will also be solely responsible to maintain their relationships with their insureds for any policies remaining with Indium. If Agency fails to maintain their relationship with the insured, Indium reserves the right to facilitate to transfer of that client and their associated policies to another Agency partner within the Indium network.
22.214.171.124 Indium will retain all commissions on any remaining policies being serviced by Indium and carrier partner(s) immediately following termination.
126.96.36.199 Agency will no longer have access to any products, services and facilities of Indium.
188.8.131.52 If Agency desires to reinstate the Partnership Agreement and is in good standing with Indium after the Partnership Agreement has been terminated, and Agency notifies Indium within 30 days of Termination, Agency acknowledges Agency will be charged 10% of Partnership contract amount to reinstate our partnership
7.1 This Agreement is entered solely into between the Agency and Indium. Indium assumes no responsibility toward any policyholder or sub-producer with regard to the adequacy, amount or form of any coverage obtained or placed through Indium. Agency agrees to indemnify and hold Indium harmless from any claims arising against Indium in following the instructions of the Agency and agrees to pay for any costs and attorney’s fees incurred by Indium to collect any sums due from the Agency to Indium or to enforce the terms of this Agreement.
7.2 This Agreement is NON-TRANSFERABLE. Per section 1.4, Agency agrees to (i) notify Indium within 30 days of all changes of agency purpose and/or legal entity status (i.e. via merger, acquisition, consolidation, divestiture, clustering etc.) and (ii) to provide Indium upon request all information deemed necessary to remain in good standing under this Agreement, which will be subject to review and approval to continue as an approved agency partner. Indium assumes no responsibility toward Agency otherwise and deems this Agreement to have been terminated per Section 6.2, as of the effective date of the change in status to the Agency.
8.1 The Agency shall own the rights to all insurance business produced by the Agency under this Agreement and the use and control of all expirations with respect to insurance obtained through Indium. The Agency’s right of ownership shall be subject to any agent of record (“AOR”) letter filed with Indium. The Agency shall be granted five working days to obtain a superseding agent of record letter.
8.2 If in the event the Agency shall qualify for and request approval for a direct appointment with an Indium insurance carrier partner, Agency acknowledges that:
8.2.1 Agency is performing at or above qualifying production requirements at the time of the request for a direct appointment, and for at least two consecutive years prior. Qualifying production required to attain eligibility to go direct with a carrier include, but may not be limited to: (i) $500,000 in total written premium with the given carrier, (ii) attainment of annual new business targets required to maintain a direct appointment with the given carrier, (iii) attainment of annual loss ratio target required to earn contingency sharing with the given carrier, and (iv) attainment of annual growth target required to earn contingency sharing with the given carrier.
8.2.2 Obtaining approval for a direct appointment with the insurance carrier is at the sole discretion of the insurance carrier.
8.2.3 Upon approval of direct appointment, the Agency’s associated book of existing business with Indium will move to Agency direct code after the close of the calendar year (i.e. 1/1/2xxx).
9.1 The Agency shall not place an order with Indium for any excess or surplus lines of insurance unless the Agency shall have first complied with any applicable state laws requiring the Agency to attempt to procure such insurance from insurers authorized to do business in the state of residence of the proposed insured.
9.2 The Agency shall not submit and/or place an order for insurance business with the intent to block certain markets with the sole purpose of prohibiting other insurance agents or other insurance agencies from attempting to place like or similar insurance products or policies of insurance for the same potential client and/or customer (also known as “blocking markets”). In the event that Indium reasonably determines that the Agency has violated this Section 9.2, Indium shall have the right to immediately cancel such Agency’s relationship with Indium and this Agreement shall terminate, as set forth in section 6 of this Agreement.
9.3 Agency has no direct authority to negotiate commissions with carriers, and therefore shall not attempt to negotiate commission rates with carriers in any circumstances.
9.4 Agency acknowledges that Indium refers all excess and surplus lines business to a preferred referral partner for risks that are not qualified for placement in standard markets as available through our standard market partners.
10.1 Agency agrees to indemnify, defend and hold Indium harmless for all loss, damage, or claim including attorney’s fees incurred or sustained by Indium as a result of breach by Agency of this Agreement or negligence by Agency in performance of this Agreement.
10.2 Indium agrees to indemnify and hold Agency harmless for all loss, damage, or claim including attorney’s fees incurred or sustained by Agency as a result of breach by Indium of this Agreement or negligence by Indium in performance of this Agreement.
11.1 Agency acknowledges and agrees that Indium and/or the insurance carriers offered to Agency by Indium may issue certain “codes” and/or “sub-codes” to permit the Agency to place certain insurance business through such carriers. The Agency acknowledges and agrees that Agency shall comply with all rules and regulations (e.g. minimum production requirements, etc.) promulgated by the insurance carriers and/or Indium regarding the issuance and/or cancellation of all codes and/or sub-codes. In the event that Indium and/or insurance carriers determines that the Agency has failed to comply with all rules and regulations promulgated by the insurance carriers and/or Indium regarding all codes and/or sub-codes, Indium and/or insurance carriers shall have the right to place restrictions to Agency’s ability to utilize such codes and/or sub-codes, or immediately cancel such Agency’s relationship with Indium and/or insurance carriers.
11.2 Agency acknowledges and agrees that Indium shall have the right to access and use Agency’s production and related data provided by the insurance carriers, and/or Agency, and/or our strategic partners providing solutions as a part of this Agreement, in order to report, analyze and evaluate the aggregate performance of Indium and its member agencies, both on an individual and aggregate level. Indium shall not disclose, sell or otherwise distribute any individual Agency’s production data for any purposes outside of necessary business uses stated here within without the express written consent of the Agency.
12.1 If the Agency shall at any time be in material default in any of its obligations to Indium hereunder, Indium shall have the right to offset any Commissions or any money owed to the Agency accordingly.
13.1 Except as specifically set forth to the contrary, each of the parties shall bear all expenses incurred by them in connection with this Agreement and in the consummation of the transactions contemplate hereby and in preparation thereof.
13.2 This Agreement may only be amended or modified by an instrument in writing executed by all of the parties hereto.
13.3 It is the intention of the parties that the laws of Ohio should govern the validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties. Any and all disputes and/or lawsuits filed by either party shall be filed in the Federal and/or State courts of Franklin County, Ohio each party consenting to the jurisdiction and venue of such courts.
13.4 Section, paragraph, and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
13.5 This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
13.6 All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of, and be enforceable by, the parties hereto and their successors and assigns.
13.7 This Agreement constitutes the entire agreement between the parties hereto, and there are no agreements, understandings, restrictions, warranties, or representations between the parties other than those set forth herein or herein provided for which relate to the subject matter of this Agreement.
13.8 Indium agrees to comply with all laws, rules, and regulations.
13.9 Time is of the essence