CALIFORNIA Brokerage Agreement
Exhibit
10.18
This
Agreement made this 1st day of January, 2005 by and between Bristol West
Insurance Services of California, Inc. ("Bristol") and
_________________________________ a retail insurance brokerage
("Broker").
RECITALS
WHEREAS,
Broker desires to procure from time to time for its clients various insurance
coverages offered by the Bristol;
WHEREAS,
Bristol desires to make its insurance products available to Broker where the
terms are agreeable to both parties;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, the parties covenant and agree as follows:
AGREEMENT
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I. |
DEFINITIONS |
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(1) |
"Agreement"
means this Agreement, all Underwriting Guidelines, addenda, attachments
and modifications hereto, all of which shall constitute a part of this
Agreement. |
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(2) |
"Commission"
means the compensation payable to Broker hereunder, as set forth in
Exhibit # 1 to this Agreement. |
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(3) |
"Policy(ies)"
means any applications for insurance, insurance contracts including any
attached endorsements, and any related
documents. |
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(4) |
"Underwriting
Guideline(s)" means the manuals, rules, regulations, specific
instructions, and bulletins promulgated by Bristol with respect to the
placement or writing of any line or class of
insurance. |
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II. |
RELATIONSHIP |
A. It
is understood and agreed that Broker is an independent contractor, represents
the applicant, and is not an agent of Bristol. Further, Broker confirms and
agrees that, as an independent contractor, Broker is not an employee, partner or
joint venturer of Bristol. Broker may conduct business with such other companies
as Broker deems appropriate. Broker
has exclusive control of its time and of the conduct of its business, and is
responsible for all expenses incurred in the operation of its
business.
B. Broker
warrants and represents that it will neither represent itself as an agent,
employee, partner or joint venturer of Bristol nor perform any act that would
typically be performed by an agent, employee, partner or joint venturer or that
would lead an applicant to believe Broker was an agent, employee, partner or
joint venturer of Bristol. In the event there is an allegation, demand, claim,
and/or litigation that Broker is acting as an agent of Bristol, Broker shall
indemnify and hold harmless Bristol pursuant to Section IX (Indemnification of
Bristol) below.
| III. |
BROKER'S
AUTHORITY |
A. Bristol
specifically herein grants to Broker the authority to submit to Bristol
applications for Bristol's insurance products, accept and remit to Bristol
premiums and other payments from Broker's clients, and deliver Policies issued
by Bristol, subject to and in compliance with this Agreement, the Underwriting
Guidelines and California law.
B. It
is understood and agreed that Broker has only that authority specified in this
Agreement. Should Broker perform any act inconsistent with the authority granted
herein, fail to perform any act specifically required herein, or fail to comply
with applicable laws or regulations governing Broker, Broker shall be deemed by
Bristol to be acting outside the scope of authority granted and shall be in
breach of this Agreement.
C. Broker
has no authority hereunder to bind insurance risks, only to submit applications
for such risks. No coverage shall be in effect on any such application until the
Policy is bound by Bristol. Bristol will bind coverage only on risks that comply
fully with its Underwriting Guidelines and only after Broker has electronically
submitted applications for such risks to Bristol.
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IV. |
BROKER'S
OBLIGATIONS |
Broker
understands and agrees to adhere to the following obligations. Failure to comply
with one or more of these obligations is a breach of this
Agreement.
A. Broker
shall conduct business with Bristol in accordance with the provisions of this
Agreement. Broker agrees to comply with and be bound by the Underwriting
Guidelines, as modified and supplemented by Bristol in its sole and absolute
discretion from time to time.
B. Broker
shall adhere to all applicable laws and regulations, including without
limitation all laws and regulations pertaining to broker fee disclosures and
broker fiduciary duties.
C. Broker
shall, at its own cost and expense, purchase and maintain in force so long as
any Policy placed hereunder remains in effect, an Errors and Omissions insurance
policy with limits equal to or greater than $500,000 each occurrence and
$500,000 general aggregate. Broker shall provide Bristol with a declaration page
and, upon request, a certified copy, of said policy. Bristol reserves the right
to verify coverage at any time and immediately terminate this Agreement if, in
the sole and absolute discretion of Bristol, it deems Broker's Errors and
Omissions insurance policy to be unacceptable, in accordance with Section XI,
below.
D. Bristol
may furnish to Broker forms, stationary, and other supplies. All such materials
shall remain the sole property of Bristol. Broker shall within seven (7) days of
termination of this Agreement, or upon Bristol's demand, return any and all
materials and any other Bristol property provided to Broker by Bristol.
E. Broker
shall not use the name, trade name, logo, trademark, or other intellectual
property of Bristol in any advertising or marketing.
F. Broker
shall not extend credit on behalf of Bristol.
G. Broker
shall remit all payments, forms and other documents to Bristol pursuant to the
provisions in this Agreement and in accordance with the Underwriting Guidelines
and all other policies and procedures provided to Broker by
Bristol.
H. Broker
has no authority to handle any claims on behalf of Bristol, except, however,
Broker shall, upon receipt of notice of a claim, immediately report any such
information received to Bristol. Broker agrees to cooperate fully in Bristol's
or its designee's investigation of any claims.
I.
Broker
has no authority to make, alter, vary or discharge any Policy, to extend the
time for payment of premiums, to waive or extend any Policy term, obligations or
conditions, or to incur any liability on behalf of Bristol.
J. Broker
shall not assign, sell, or transfer through any means, any materials, forms,
documents or other things relating to the relationship defined by this Agreement
to any other person or entity without the written permission of
Bristol.
K. Broker
shall not allow any other person or entity not a party to this Agreement to
perform any of the herein authorized or proscribed acts. Without limiting the
forgoing, Broker shall not sub-broker any Policy or business contemplated under
this Agreement.
L. Broker
shall make available for inspection at any time by Bristol all accounting
information, books, records and other documents and things pertaining to the
business contemplated by this Agreement.
M.
Broker
shall immediately provide to Bristol, upon Bristol's request, any information
requested by Bristol pertaining to any Bristol related insurance
transaction.
N. Broker
shall be responsible for securing and keeping in force and in good standing the
required insurance license and applicable bonds required by the State for Broker
to act as an insurance broker. Broker shall not submit any application to
Bristol unless the Broker maintains in good standing the required insurance
license. Each individual within the Broker's business who handles Bristol's
business must be fully licensed as a broker and maintain all bonds required by
the State.
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O. If a
conflict exists as to which broker is authorized to represent an insured with
respect to any Policy, Broker shall supply Bristol with a written Broker of
Record Letter from the insured authorizing the Broker to represent the
insured.
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V. |
UNDERWRITING
CONTROL OF THE COMPANY |
Bristol
reserves the right to refuse any application at any time or to cancel any Policy
subject to the provisions of Section VIII below.
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VI. |
COMMISSIONS |
A. Commissions
will be paid as outlined in Exhibit #1, attached. Commissions will be paid net
of cancellations and other adjustments to premium. Commission schedules may be
revised by mutual agreement of Broker and Bristol or by Bristol giving Broker at
least 30 days advance written notice of the revisions and the effective date.
Broker acknowledges such right to amend and waives any longer notice period that
may be available under applicable statutes, rules or regulations.
B Broker's
right to Commission is conditioned on Broker's full compliance with the terms,
conditions, and restrictions of this Agreement. Bristol shall have the right to
set off against all sums owed by Bristol to Broker under this Agreement for any
indebtedness, liability, claim or obligation, whatsoever, of Broker to Bristol,
including unearned Commission. Any misrepresentation or violation of law by
Broker to Bristol shall constitute a waiver by Broker of any Commission due and
outstanding. Broker agrees that undistributed Commissions in the hands of
Bristol at any time may be offset against any monies due Bristol.
C.
Whenever
there has been any reduction in premium, whether by cancellation of coverage,
adjustment of premium or other cause, for which Commission has been paid
hereunder, Broker shall make a refund to Bristol of all Commission paid to
Broker in connection therewith. Until said monies are returned by Broker to
Bristol, they shall be held by Broker as trustee for Bristol on behalf of
Bristol.
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VII. |
BILLING
PROCEDURES |
Broker
shall submit promptly to Bristol all applications for Policies and remit the
gross premiums (without deduction of Commissions) for or payable on such
Policies, in accordance with the provisions of Bristol's Underwriting
Guidelines. Broker shall be responsible for remitting all collected premiums to
Bristol. If Broker fails to remit premiums or unearned Commissions or any other
amount due Bristol, Broker agrees to pay the reasonable costs of collection,
including attorney fees.
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VIII. |
POLICY
CANCELLATIONS |
Any
Policy may be cancelled by Bristol, subject to any limitation or restrictions
contained within the Policy. A Policy may be cancelled by Bristol in accordance
with all statutory and regulatory laws.
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IX. |
INDEMNIFICATION
OF BRISTOL |
A. Broker
agrees to fully indemnify and hold harmless Bristol, its successors, and assigns
from any and all judgments, losses, damages, costs and expenses, including
attorney's fees which Bristol may at any time sustain because of the failure of
Broker to comply fully with the terms, provisions and obligations of this
Agreement, including, but not limited to the payment to Bristol of all sums of
money which may become due Bristol from Broker thereunder and any agreement to
indemnify Bristol.
B. This
Agreement to indemnify and hold Bristol harmless shall include the reasonable
attorney's fees and related expenses incurred to prosecute or defend any
lawsuit, claim, demand, administrative proceeding or arbitration; shall extend
to any claim or assertion that Broker breached or waived any provision of any
Policy, endorsement, or application; and shall include, but not be limited to
any claims or assertions of bad faith, breach of covenant of fair dealing,
unfair claims or insurance practices, deceptive trade practices,
extracontractual or exemplary damages arising wholly, or in part, from the
action or inaction of Broker.
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X. |
INDEMNIFICATION
OF BROKER |
A. Bristol
shall indemnify and hold Broker harmless:
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1. Against
any claims, liabilities or costs of defense which Broker may become obligated to
pay as a result of loss to policyholders caused by an error of Bristol in the
processing of policies under this Agreement unless Broker has caused,
contributed to or compounded such error.
2. Against
any and all civil liability for damages and expenses, including the cost of
defense, that Broker may be obligated to pay as a direct result of the failure
of Bristol to comply with the requirements of the Fair Credit Reporting Act,
Federal Truth in Lending Law and Fair Credit Billing Act, unless such failure to
comply has been caused or contributed to by any act or omission of
Broker.
B. Bristol's
obligation to indemnify Broker shall be conditioned upon prompt notification
by Broker
to Bristol of any claim made or legal action brought against Broker which is
subject to indemnification as set forth above and Bristol shall have the right
to direct the investigation, settlement and defense of any such claim or action.
Bristol shall not be obligated to indemnify Broker to the extent the Broker has
valid and collectable insurance applicable to any damage or
liability.
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XI. |
TERMINATION
AND AMENDMENT |
A. The
Agreement shall terminate:
1. Automatically,
if any public authority cancels, declines renewal of, or suspends Broker's
license.
2. Automatically,
on the effective date of sale, transfer, assignment, change of ownership, change
of control or merger of Broker's business. Bristol, at its sole and absolute
discretion, may offer a Brokerage Agreement to any successor of
Broker.
3. Upon
either party giving at least thirty (30) days advance written notice to the
other. The Broker acknowledges Bristol's right to terminate and waives any
longer notice period which may be available under applicable statutes, rules or
regulations.
4. Immediately
upon either party giving written notice to the other in the event of
abandonment, fraud, insolvency, breach of this Agreement, or gross and willful
misconduct on the part of such party.
B. If this
Agreement is terminated as provided in Sub-Section A, above;
1. The
Broker's authority set forth in paragraph III, above, will cease on the date of
the event described in Sub-Section A(1) or (2); or on the date specified in a
Notice of Termination of this Agreement if given with respect to Sub-Section A
(3) or (4).
2. All
provisions of this agreement shall remain in full force and effect including
Section VI, Commissions. The parties agree that after termination, Bristol will
pay Broker a Commission of ____% on renewal policies for a period of three (3)
years from the date of termination. After the three (3) years have passed,
California Insurance Code Section 769 shall apply.
3. Bristol
shall continue to provide to the policyholders all normal and appropriate
services on all in force Policies without interruption until said Policies may
lawfully be terminated.
C. Bristol
may amend this Agreement (1) upon thirty (30) days prior written notice to
Broker, or (2) immediately, in the event Bristol amends this Agreement to comply
with the law. Broker shall not be entitled to, and hereby waives, any and all
monetary damages, fees, and/or costs in the event an amendment was not in
compliance with this Section XI(C). Broker acknowledges such right to amend and
waives any longer notice period which may be available under applicable
statutes, rules or regulations.
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XII. |
GENERAL
PROVISIONS |
A. Assignment: Broker's
rights, responsibilities and interests under this Agreement shall not be
assigned or transferred, by operation of law or otherwise, without the prior
written consent of Bristol, in Bristol's sole and absolute
discretion. Any
transfer or assignment in violation of this Agreement shall be deemed null and
void.
B. Governing
Law: This
Agreement and the provisions herein shall be governed by the laws of the State
of California. If any provision of this Agreement conflicts with such governing
law, such provision shall be modified to comply with such law. Venue for all
actions arising from or commencing under this Agreement shall be in Los Angeles
County, California.
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C. Severability: This
Agreement is severable, and the invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of this
Agreement or any other term or provision hereof.
D. Arbitration: Any
dispute arising out of or related to this Agreement shall be resolved
exclusively by binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). Either party may invoke
this arbitration procedure by giving written notice to that effect to the other
party. The parties will attempt to agree upon a single arbitrator. If agreement
regarding selection of a single arbitrator is not reached within thirty (30)
days after the initial demand for arbitration, each party shall, within thirty
(30) days thereafter, select an arbitrator. Those two arbitrators shall, within
thirty (30) days after they both have been named, select a third arbitrator, who
shall serve as the Chair of the arbitration panel. If the two party-selected
arbitrators are unable to agree upon a third arbitrator, then the AAA shall
appoint a person who is neutral to the parties to act as the Chair of the
arbitration panel. None of the arbitrators may be former or current partners,
principals, directors, officers, shareholders or employees of the parties or
their affiliates.
E. Entire
Agreement: This
Agreement supersedes and replaces as of its effective date all previous
agreements, whether oral or written, between Bristol and Broker. No
representative of either party shall have the power to alter or waive any of the
terms, provisions or conditions of this Agreement unless such alterations or
waivers are made in writing and duly signed by both parties.
F. Notice:
For purposes of this Agreement, any notice required by this Agreement must
always be written and deemed a material provision. Whenever notice is required
(a) by Bristol, the mailing, faxing, or delivery of a notice to the last known
address of Broker as shown by Bristol's records shall constitute effective
notice; (b) by Broker, the mailing, faxing, or delivery of a notice to the
following persons shall constitute effective notice:
Xxxxxx
Xxxxxx
Senior
Vice-President, Marketing
Bristol
West Holdings, Inc.
0000
Xxxxxxxx Xxxx
Xxxxx,
Xxxxxxx 00000
Copy
To:
Xxxxxx
X. X'Xxxxx, Esquire
Chief
Legal Officer
Bristol
West Holdings, Inc.
0000
Xxxxxx Xxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxx Xxxxxx 00000
G. Confidentiality: Bristol
and Broker may share with one another confidential information regarding
Broker's clients. In the course of dealing with one another, Bristol and Broker
will each have access to the non-public customer information of the other (the
"Confidential Information"). Bristol and Broker hereby agree to maintain the
confidentiality of the Confidential Information in accordance with all
applicable privacy laws and regulations. Bristol and Broker, and their
respective advisors and agents may use the Confidential Information to provide
the products and services contemplated under this Agreement and as otherwise
permitted by law and regulation. Bristol and Broker further agree to implement
and maintain throughout the term of this Agreement security measures reasonably
designed to: (i) ensure the security and confidentiality of the Confidential
Information, (ii) protect against any anticipated threats or hazards to the
security and integrity of such Confidential Information, and (iii) protect
against unauthorized access to or use of such Confidential Information that
could result in substantial harm or inconvenience to any of their customers.
H. Time
is of the Essence: Time is
of the essence with respect to all provisions contained in the
Agreement.
I. Application
Process: In
connection with Broker's application for a Brokerage Agreement, Broker
acknowledges and agrees that an investigation may be made into the character,
occupation, general reputation, personal habits, health, financial condition,
and mode of living of the Broker and its representatives.
J. Signature: Broker
acknowledges that a signature is not required on this revised Agreement. This
Agreement is an amendment to the Producer's Agreement, which authorizes this
amendment without signature.
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In
witness whereof, Broker and Bristol have caused this Agreement to be executed
and made effective on January 1, 2005.
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| BROKER | BRISTOL WEST INSURANCE SERVICES OF | |||
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CALIFORNIA,
INC. | ||||
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By:
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By |
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Title: |
Title: |
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Date: |
Date:
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Witness: |
Witness: |
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EXHIBIT
#1 -- COMMISSIONS
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