Retail Brokerage Agreement

Last Modified: 03.28.2023

Acceptance of the Terms of Use

This Retail Brokerage Agreement (“Agreement”) is made and entered into by and between Apollo Brokers, Inc. D/B/A LIMIT, (“Broker”), a Delaware corporation, with a principal place of business located at 440 N BARRANCA AVE #1568 COVINA, CA 91723 and you, a retail agent (“Agent”). (Each a “Party”; collectively, “Parties”).

WHEREAS, Broker is a licensed property and casualty (“P&C”) producer and excess surplus lines (“SL”) broker and in the business of placing contracts of insurance with various insurance companies (“Insurance Carrier”) who may or may not be admitted to produce business in the state(s) of the residence of the Agent’s customers (“Clients”);

WHEREAS, Agent is a licensed P&C producer in good standing in each state in which it conducts business and may request Broker to obtain P&C coverage for the Agent’s Clients;

WHEREAS, Broker and Agent intend to comply with the laws of the governmental jurisdiction(s) within which they operate pursuant to this Agreement, and with the rules and regulations of the insurance regulatory authorities, thereof;

NOW THEREFORE, in consideration of the promises, mutual covenants, and other good and valuable consideration recited herein, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:

Scope of Agreement

This Agreement shall govern the relationship between Broker and Agent with respect to the marketing and placement and/or procurement of policies of insurance by Broker at the request of the Agent for its Clients as well as the collection and use by Broker of insurance, demographic, financial and other statistical information supplied by Agent or Clients. Nothing herein shall be construed to require Agent to obtain insurance through Broker nor require the Broker to accept any application(s) for insurance from Agent.

Duration and Termination

• This Agreement shall continue in full force and effect until terminated by either party with thirty (30) days advance written notice. Notwithstanding such termination, this Agreement shall continue to apply to all policies ordered by Agent through Broker, prior to the effective date of termination. Furthermore, Broker’s rights under Sections X, XI, XII, XIII, and XIV hereinbelow shall continue for three years subsequent to termination.
• Within thirty (30) days of effective date of termination, unless otherwise stipulated at the option of the Broker, Agent shall account to the Broker for all premiums, contributions, commissions, and other transaction(s) unaccounted for on the date of termination or arising thereafter with respect to outstanding insurance. Where Broker finds it necessary to perform any duty otherwise required of Agent under this agreement, Agent shall be liable to Broker for all costs incident thereto.

Agent’s Authority

Nothing contained in this Agreement shall be construed to constitute Agent as an agent for the Broker. Agent shall have no authority to (i) make any representations on behalf of Broker or Insurance Carrier or (ii) obligate Broker to the Agent’s Client(s) or any other third party. Agent shall not waive, alter, modify or change any of the terms, rates or conditions of any policy of insurance issued by or on behalf of Broker. Agent has no authority to accept or bind risks on behalf of Broker or Insurance Carrier. Agent shall not place any advertisement respecting Broker in any publication, website, or advertisement without the prior written consent of Broker. The Agent shall not have the authority to appoint other agents or subagents for purposes of this Agreement.

Ownership of Business and Expirations

Agent shall own all insurance business of the Agent’s Clients subject to this Agreement and the use and control of all expirations with respect to insurance obtained through Broker, except that if Agent is in default in any of its obligations, Broker shall have the right to the exclusive use and control of any such expirations and to apply any proceeds thereof to the fulfillment of such obligations of Agent.

License of Broker/Errors and Omissions

Agent warrants that it is duly licensed as a property and casualty insurance agent in each state in which it transacts or intends to transact business and that Agent will continue to be licensed during the duration of this Agreement. Agent further warrants that it shall maintain so long as this Agreement is in effect and for a two year period thereafter, an insurance agents’ Errors and Omission Insurance Policy as well as a General Commercial Liability Policy, each with limits of no less than $1,000,000 per occurrence and $1,000,000 annual aggregate, issued by any insurer rated “A” or better by A. M. Best.

Payment Responsibilities:

• General Principles
• Agent shall be obligated to pay on a timely basis to Broker all premiums, fees and applicable taxes due with respect to policies of insurance offered to Agent’s Client(s) through Broker, whether or not Agent shall have collected such premiums and taxes from the Insured. Agent recognizes that in agreeing to pay such premiums and taxes to Broker, Agent does so unconditionally as an original undertaking on its own part and not as guarantor or surety of the obligation of Agent’s Client(s).
• All premiums, including return premiums, received by Agent for business written by Broker, whether before or after termination of this Agreement are the property of Broker. Agent will hold such premiums in a fiduciary capacity as trustee for Broker. All premium monies collected, net of allowable deductions, shall be held in trust for Broker in an account in an FDIC member bank until payment of such amounts is made to Broker. Agent shall not commingle any premium funds with any personal or business accounts, other of your funds, or funds held in any other capacity. Agent is prohibited from taking any offsets for monies that are required to be deposited in such account.
• Agent may withhold from any premiums and taxes the Agent’s Commission (defined below) if the Agent is not in default of any of its obligations under this Agreement.
• If any Client of the Agent defaults in the payment of any premium and/or tax as and when due, Broker shall have the right (but not the obligation) to take all necessary action, including legal action, to collect the premium and tax directly from the Insured. Such action by Broker, however, shall not relieve Agent of its obligation to pay Broker such premium and tax. Agent will not receive Commissions on any (i) uncollected premium or (ii) premiums where the Broker or Insurance Carrier took over collection.
• Broker shall have the right to offset any premiums or other payments due from Agent against any amounts owed by Broker to Agent.
• Broker shall be entitled to reimbursement from the Agent of all costs, including but not limited to reasonable attorneys’ fees and costs, incurred by Broker in its efforts to collect unpaid premiums. Broker shall also be entitled to reimbursement of any penalties levied by a governmental agency or Surplus Lines Association due to the failure of the Agent to remit to Broker any taxes or fees, in full and on a timely basis.
• If the Agent’s business is sold, transferred, or assigned, this Agreement will terminate unless Broker consents to the sale, transfer, or assignment in writing.
• Agent may prepay all premiums and taxes due with respect to policies of insurance offered to its Client(s) through Broker at the time the policy is bound. All additional premiums generated by endorsements or audits will be Broker Agency billed, and the Agent shall pay Broker according to the terms under item C (Agency Billed Policies), below.
• Agent may elect, at its option, to request that Broker undertake the responsibility for collections of premiums and taxes due under such policy(s) offered to Agent’s Client(s) through Broker. If Agent makes such election, the Agent’s Commission rate shall be reduced by three percentage points.
• The extension of credit by Agent to any insured shall be at Agent’s sole risk and shall not delay any premium payments due under policies bound and written under this Agreement.
• Direct Billed Policies

For business placed by Agent with Broker that is designated by Broker as direct billed, Agent and Broker agree to the following:

• The Insurance Carrier will directly bill the Insured for any and all premiums and fees due from the Client(s) on such policies.
• The Client(s) remits payment directly to Insurance Carrier.
• Invoices will be sent directly by Insurance Carrier to the Client(s).
• Broker will pay Agent a commission, a percentage of premium determined by Broker and disclosed to Agent prior to binding any policy, on each policy written for Agent’s Client(s) (the “Commission”) within 45 days of Broker’s receipt of payment from the Insurance Carrier.
• Agent will be obligated to pay return commission to Broker, at the same rate as Agent’s commission, on any return premiums or adjustments, including, but not limited to return premiums on cancellations or reductions ordered and return premiums payable as a result of amended policy terms, within 45 days of receipt of advice of return premium.
• Agency Billed Policies

For business placed by the Agent with Broker that is designated by Broker as agency billed, Agent will be liable for all sums due and payable to Broker on Agent’s own and its Client(s) behalf. Agent shall pay to Broker the balances due on all certificates, policies, retrospective adjustments and other sums owed relating to insurance arranged by Broker for Agent’s Client(s) as follows:

• Agent will pay Broker, regardless of the collectability or collection status of the Agent’s Insured’s account, the total premiums due plus any applicable taxes or fees, as reflected in Broker invoice(s), no later than twenty (20) days after the effective date of coverage, or on endorsements no later than twenty (20) days after receipt of Broker invoice. Agent may deduct Commission from such payment, but only if Agent is not in default in any of its obligations under this Agreement.
• Agent may be relieved of responsibility to pay additional premiums resulting from a retrospective premium adjustment or audit, if after documented effort (“Documented Effort”) on the part of Agent to collect such additional premium, the Agent notifies Broker in writing within fifteen (15) days of receipt by Agent of the invoice or request for such additional premiums, Agent cannot collect such premium. Documented Effort will consist of two (2) written attempts and one (1) documented telephonic attempt by the Agent to collect such additional premiums from the Client(s).
• Agent will be obligated to pay return commission to Broker at the same rate as Agent’s Commission, on any return premiums or adjustments involving Agent’s Client(s), including but not limited to return premiums on cancellations or reductions ordered and return premiums payable as a result of amended policy terms, within 45 days of receipt of advice of return premium. If Agent fails to pay in full and on time any such return commission or adjustment, Broker shall have the right to offset the amount of any such return commission or adjustment owing from Agent against any future payments due from Broker.
• Financed Policies

• Financed through Broker

  Broker is not obligated to extend or obtain premium financing from any Insured. If Broker, however, obtains premium financing for any Client(s), the Agent shall be responsible for obtaining an original, signed finance agreement, in the form provided by the finance company and any other documents the finance company may require, and the down payment premium, within ten (10) days of the effective date of the policy. Such finance agreement and down payment premium shall be sent directly to Broker at its address provided in this Agreement.

  The Agent’s Commission will be payable by Broker within forty-five (45) days after receipt of the total amount due under the policy.

  All future payments under the finance agreement will be paid directly to the finance company at the address indicated in the agreement.

  All return premiums and adjustments will be sent directly to the finance company. The Agent’s Commission on return premiums and adjustments shall be paid by Agent to Broker within forty-five (45) days following the processing of such return premiums or adjustments.

  All additional premiums generated by endorsements or audits will be Broker Agency billed, and the Agent shall pay Broker according to the terms under item C above.

• Financed by Agent

  Agent will be responsible for notifying Broker of any Insured’s policy financed by or through Agent.

Cancellations of Insurance

Nothing contained herein shall be construed to limit or restrict any rights of cancellation of Broker or any Insurance Carrier contained in any binder, cover note, policy or contract of insurance or by law, including the right of the Insurance Carrier, within its discretion, to cancel or rescind the policy for underwriting or other reasons. Cancellation or rescission of a policy by the Insurance Carrier terminates Agent’s right to any future Commissions. Agent shall not be entitled to any flat cancellation, unless authorized or agreed to in advance in writing by Broker. In the event of cancellation, Agent shall be liable to Broker for any earned premium and taxes (if any) thereon, whether or not Agent has collected such premium and taxes (if any) from the Client(s).

Claims

Agent agrees to safeguard the interests of Broker and Insurance Carrier, promptly reporting with full details any fact, occurrence or incident that may result in a claim or loss or increased risk of loss to Broker or Insurance Carrier. Agent also agrees to report any subsequent information regarding such claim or loss. Agent must immediately notify the Broker and the Insurance Carrier of any loss, claim or occurrence upon discovery. Agent has no authority to handle claims other than to provide notice to Broker and Insurance Carrier.

Inspections and Adjustments

Broker or its duly authorized representatives shall have the right at any time during normal business hours, to audit any insurance policy placed under this Agreement and to inspect Agent’s books and records in connection therewith, to the extent such audit or inspection is deemed necessary by Broker to verify Agent’s compliance with its obligations under this Agreement. Agent shall promptly report and pay to Broker any additional or return premiums which may become due as a result of any adjustments.

Confidentiality

• For purposes of this Agreement, “Confidential Information” means trade secrets and any information (1) that is not in the public domain; (2) that the recipient has not obtained from a third party independent from the performance of any obligations under this Agreement; or (3) that is not known by the recipient prior to receiving such information from the other party.
• All Confidential Information shall remain confidential at all times during and after the period that this Agreement is in effect, except as otherwise required by law. Each party hereto covenants and agrees that it shall not, and shall cause its employees and agents not to, divulge, furnish, publish or use for its benefit or for the direct or indirect benefit of any third party any Confidential Information of the other party except as otherwise expressly permitted by this Agreement or required by law. Each party shall exercise a high degree of care to prevent the unauthorized dissemination, disclosure or use, other than as expressly provided herein, of any Confidential Information of the other party and shall not make or allow any disclosure of the Confidential Information of the other party to any third party. Upon termination of this Agreement, each party shall return to the other party any Confidential Information provided under this Agreement and shall make no further use of such Confidential Information.
• Consistent with the Scope of this Agreement (as described in Section I), Agent agrees that Broker may collect and use information Agent or Client(s) provides to create, develop or demonstrate anonymized industry or sector-wide statistics that may be shared with affiliates or third parties, on the condition that unless Broker has obtained specific Agent consent, information specific to Agent or Client will not be revealed other than on an anonymized basis.
• Each party hereto agrees that in the event that the recipient of Confidential Information or any of recipient’s representatives or advisors or, if applicable, third-parties, is compelled by legal process or required by applicable law, rule, regulation or lawful order or ruling of any court, government, agency or regulatory commission to make any disclosure of any of the Confidential Information of the disclosing party, unless prohibited by law, the recipient shall first give prompt written notice of such requirement to the disclosing party, shall permit the disclosing party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and shall provide commercially reasonable cooperation to the disclosing party in seeking to obtain such protection. The recipient further agrees that if the disclosing party is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, the recipient, recipient’s representative, recipient’s advisor or third-party, as applicable, shall disclose only that portion of the Confidential Information which is legally required to be disclosed and, at the request and expense of the disclosing party, will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
• The nature of the disclosing party’s Confidential Information is such that any breach or threat thereof of the recipient’s obligations hereunder or any unauthorized use or release or threatened use or release of any Confidential Information of the disclosing party may result in irreparable harm to the disclosing party and that, without limiting a party’s other rights and remedies in law or equity, the disclosing party shall be entitled to seek appropriate equitable relief, including an injunction (without the necessity of posting bond) or specific performance, against the recipient for breaching or threatening to breach this Agreement in addition to whatever remedies it might have at law.

Data Security

• Agent has an established information security program containing appropriate administrative, technical and physical measures to protect Broker data (including any information relating to an identified or identifiable natural person) against accidental or unlawful destruction, alteration, unauthorized disclosure or access consistent with applicable local, state and federal laws as well as data processing industry standards. An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to such person's physical, physiological, mental, economic, cultural or social identity, (collectively, “Personal Information”).
• If Agent becomes aware of a security breach, data breach, or cyber breach (as defined in any applicable law) or any other event that (i) compromises the security, confidentiality or integrity of Broker's data (ii) interferes with Broker's ability to handle its business or Broker's ability to perform under this Agreement (iii) results in an issue that could harm Broker's hardware, software or data, or reputation; or (iv) results in an issue that requires some form of action by Broker (each an “Incident”), Agent will notify Broker promptly, in any case within two (2) business days of discovery of such Incident and will take appropriate actions to contain, investigate and mitigate the Incident. In the event that applicable law requires notification to individuals and others of such an Incident, Agent will take additional mitigation steps including providing assistance with the drafting and mailing of such notifications. Agent and Broker shall mutually agree in good faith on the content and timing of any such notifications and any other mitigation or remediation actions as needed to meet applicable legal requirements.
• Upon completion of an investigation of the Incident, or thirty (30) days after the Incident, whichever is sooner, the Agent shall provide to Broker a copy of an Incident Report that explains the cause and origin of the Incident, as well as list the remedies implemented by Agent to prevent future Incidents from occurring. If the investigation is not completed within thirty (30) days, Agent will provide an Incident Report every thirty (30) days until all investigation and remediation is completed.

Limitation of Liability

BROKER’S MAXIMUM LIABILITY TO AGENT FOR BREACH OF CONTRACT, TORT, OR OTHERWISE SHALL BE $1,000,000. IN NO EVENT SHALL BROKER HAVE ANY LIABILITY TO GENERAL AGENT WHATSOEVER FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR REVENUE ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Intellectual Property

For the purposes of this Agreement, “Broker IP” means Broker's trademarks and/or service marks, certain documents, software and other works of authorship, other technology, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information, and any other data, information and/or material provided by Broker to Agent in the course in the course of either parties’ performance under this Agreement. Additionally, Agent and Broker may, from time to time, discuss ways to improve Broker’s functionality, operations, interface or the delivery of its services to Agent or Agent’s Client(s) (“Improvements”). Such Improvements are solely and exclusively owned by Broker and part of Broker IP. Agent shall have no interest in any such Improvements, regardless of Agent’s role in the development or creation of the same. Agent shall not disclose, imitate, reverse engineer, or otherwise access or use any Broker IP except in the performance of this Agreement.

Agent hereby grants Broker during the Term a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use its name, likeness, logo, symbols, trademarks, services marks, and the like, whether trademarked or not, in order to “white label” Broker’s products and systems under Agent’s name. Broker shall access and use Agent’s name, likeness, logo, symbols, trademarks, service marks, and the like, solely as necessary to fulfill its obligations under the terms and conditions of this Agreement. Agent agrees to fully indemnify Broker for any and all claims, damages, judgments (including legal defense fees) in connection any allegation that Broker’s use of Agent’s name, likeness, logo, symbols, trademarks, services marks, and the like, allegedly violates, infringes, or damages any third party’s rights or interests in the same.

Non-Solicitation

Broker and the Agent agree that during the term of this Agreement and for a period of twelve (12) months following its termination, neither Broker nor Agent shall recruit or attempt to recruit (either directly or indirectly by assisting others) each other’s employees. Neither the Broker nor Agent shall initiate any contact or communicate with each other’s employees except in furtherance of the business of this Agreement. This limitation shall not preclude the Broker or Agent from hiring any person, including each other’s employees, who first initiates contact with them seeking employment, provided that such contact is consistent with the employees’ employment contract.

Indemnification

• Indemnification of Broker. The Agent agrees to defend, indemnify and hold harmless the Broker and each of the Broker's officers, directors, agents and employees from and against any and all claims, suits and demands of every kind and nature, including any and all actions, causes of action, suits, judgments, controversies, losses, damages, costs, liens, charges, court costs, reasonable attorney's fees, payments, liabilities and expenses whatsoever occasioned by, resulting from, arising out of, related to or in connection with:
• The Agent's violation of any law and/or regulation that relates to this Agreement;
• The Agent's material breach of any term of this Agreement;
• The Agent's negligent or wrongful acts or omissions, including as to services or advice rendered for non-parties to this Agreement, that relate to this Agreement; or
• Criminal acts of the Agent or its personnel under the supervision of the Agent.
• Indemnification of Agent. The Broker agrees to defend, indemnify and hold harmless the Agent and each of the Agent's officers, directors, agents and employees from and against any and all claims, suits and demands of every kind and nature, including any and all actions, causes of action, suits, judgments, controversies, losses, damages, costs, liens, charges, court costs, reasonable attorney's fees, payments, liabilities and expenses whatsoever occasioned by, resulting from, arising out of, related to or in connection with:
• The Broker's intentional violation of any law and/or regulation that relates to this Agreement; or
• The Broker's intentional breach of any term of this Agreement; or
• The Broker's negligent or wrongful acts or omissions that relate to this Agreement; or
• Criminal acts of the Broker or its personnel under the supervision of the Broker.

Arbitration

• Any controversy, dispute or claim between the Parties shall be resolved by arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) at the request of either Party. The arbitrator panel shall apply state substantive Law and federal substantive law where state law is preempted. The Federal Arbitration Act, 9 U.S.C. § 1-16, shall apply to any appeal, confirmation or vacation of any award issued by the Panel. Each Party shall be liable for its own and costs expenses, including the cost of its arbiter. The Parties shall even share in the cost of the umpire.
• Each Party shall appoint an arbitrator within thirty (30) days of the date on which a Party makes a written demand for arbitration, and the two named shall select an umpire. If either Party refuses or neglects to appoint an arbitrator within the time specified, the other Party may appoint the second arbitrator. If the two arbitrators fail to agree on an umpire within thirty (30) days of their appointment each of them shall name three (3) individuals, of whom the other shall decline two (2), and the choice shall then be made by drawing lots.
• Each Party shall submit its case to the arbitrators within thirty (30) days of the appointment of the umpire or within such period as may be agreed by the arbitrators. The situs of the Panel shall take place in New York, New York unless otherwise agreed by the Parties. The written decision of a majority of the Panel shall be made as soon as practicable but within sixty (60) days following termination of the hearings unless the Parties mutually consent to an extension. Such majority decision of the Panel shall be final and binding on the Parties both as to law and fact and may not be appealed to any court of any jurisdiction.

Other Provisions

• Assignment: Agent shall not assign or transfer any of its rights, whether by agreement, by merger, or otherwise, or delegate any of its obligations, under this Agreement without the prior written consent of Broker. Broker may assign its rights and obligations under this Agreement, in full or in part, to any of its sister, parent or affiliated corporations without the consent of the Agent.
• Non-Reliance: Agent, as a knowledgeable, licensed P&C producer shall at all times use its own independent, professional judgement (including that of its legal advisors) regarding the type, the terms and the limits of insurance appropriate for its Clients. Agent shall not rely on any consultation, advice or recommendation from Broker or any of its affiliates in connection with the purchase or renewal of any policy of insurance.
• Waiver: No failure by either party to require performance by the other party of any provisions hereof shall be a waiver of such provisions and no waiver or amendment of any provision hereof shall be effective unless in writing.
• Entire Agreement: Execution of this Agreement constitutes full agreement and understanding between the Parties with respect to each of the sections above and supersedes all prior representations, understandings, undertakings or agreements (whether express or implied). This Agreement may not be altered, modified, or amended except by written agreement and executed by both Parties.
• Governing Law: This Agreement shall be governed by and construed in accordance with the laws of New York.

Notice

Whenever notice is to be given pursuant to this agreement, it shall be done by written notice, and personally delivered or sent to the party by certified mail, postage paid to:

SCHEDULE A

THIS SCHEDULE FORMS A PART OF AND INCORPORATED INTO THE RETAIL BROKER AGREEMENT.

Agent Commissions

• As full compensation for Agency’s services in connection with insurance policies produced under this Agreement, Apollo Brokers will pay as commissions to Agent a percentage of the collected premium, net of surplus taxes and stamp duty, received by us at the rate of 12.5% for new business to Apollo Brokers and 10.5% for renewals, provided Agent has paid all amounts due and owing to Apollo Brokers and complies with the terms and conditions of the Agreement and applicable laws. Furthermore, Apollo Brokers and Agent acknowledge that commission percentages outlined above may be re-negotiated on a per policy basis subject mutual agreement.
• Agent acknowledges and agrees that Apollo Brokers may change the commission rates set forth above at any time, and that Apollo Brokers may accordingly modify Agent’s commission structure prospectively for any new business written in accordance therewith upon written notice.
• Agent agrees to promptly return to Apollo Brokers all commissions at the same rate as paid to Agent on all return premiums including those resulting from policy cancellations. Agent may charge the insured a broker fee where permitted by law in addition to the compensation due Agent under this Agreement, and in such event, Agent agrees to comply with all applicable laws with respect thereto.
• Agent shall be responsible for all taxes, charges and assessments on amounts received by Agent as commissions under this Agreement. Agent shall not charge Apollo Brokers for any fees or costs that are not contained or contemplated in the Agreement.