AUTHORITY AND OBLIGATIONS OF BROKER
1.1 The broker understands and agrees that no indication of quotations may be given on E-MGA’ behalf without first receiving written or oral notice from E-MGA of the terms, conditions, rates and limitations on each presentation made by the broker.
1.2 Nothing herein shall be construed as permitting the broker to bind any risk which has not been authorized by E-MGA or to permit the broker to hold itself out as an agent of E-MGA.
1.3 The broker understands and agrees that he has no authority to bind or quote business on behalf of E-MGA or its companies without written or oral approval of E-MGA. The terms of any binder issued by broker may not be for broader coverage than that represented in the binder issued by E-MGA.
1.4 The broker understands that renewal/expiring policies are not automatically renewed and that broker must request and receive renewal quotations from E-MGA subject to the same terms and conditions as if the business were a new presentation to E-MGA.
1.5 Service Standards. Broker will exercise its authority and perform its obligations under this Agreement in good faith and employing a professional standard of care. Broker will maintain sufficient staff of licensed, competent and trained personnel and will maintain such supplies and equipment as necessary to perform its obligations under this Agreement. Broker will maintain appropriate procedures relating to its business to assure a high level of operational and financial controls including, but not limited to, controls for Policy issuance, premium collection, notices to insureds, record retention, compliance with Law, systems and data collection and security.
1.6 Cooperation. Broker will comply with all reasonable instructions relating to this Agreement and cooperate fully with E-MGA by providing such assistance as may be requested, which may include, but is not limited to, assisting E-MGA in communicating with insureds, Producers, or regulators; assisting E-MGA in collecting premiums, deposits, deductibles, or other amounts due from insureds; assisting E-MGA in the production of disclosures, notices or other filings as required by Law; facilitating the investigation, adjustment, settlement and payment of Disputes; providing access to Records and systems; and providing such information, reports and assistance as necessary for E-MGA to respond timely to regulatory inquiries including, but not limited to, financial and market conduct examinations, loss control reviews and consumer complaints.
1.7 Marketing. Broker will not make reference to E-MGA or its parents, affiliates or subsidiaries, or use any of their service marks in any website, social media, publication, press release or other marketing materials without E-MGA’ prior written consent. Broker will maintain copies and provide an original of such materials to E-MGA by December 31 of each year during the term of any advertisement or other marketing materials utilized by Broker, along with full details concerning such use. Broker must obtain authorization to use such items at least annually and will not use any such materials or reference E-MGA in any manner after termination of this Agreement. Broker agrees that all websites, publications and other marketing materials will comply with Law. The foregoing will not prohibit Broker from ordinary course communications with insureds, prospective insureds or Producers.
2.1 Licensing. Broker represents and warrants that it and its employees have and will maintain all permits, licenses and regulatory approvals necessary to lawfully conduct the business of Broker. Broker will promptly notify E-MGA if Broker or its personnel no longer have the permits, licenses or regulatory approvals necessary to lawfully conduct business. In such event, Broker’s authority hereunder will be automatically suspended and limited as necessary for Broker to operate lawfully and may only be reinstated with E-MGA’ prior written approval. Broker will take such actions as necessary to ensure E-MGA’ records regarding such employees are current. Broker will promptly notify E-MGA if any Producer(s) no longer have the permits, licenses or regulatory approvals necessary to lawfully conduct business and Broker may no longer accept submissions from such Producer(s) until Broker notifies E-MGA that any such lapse has been fully corrected. Broker will be responsible for all expenses relating to licensing and appointments including, but not limited to, appointments of Producers. Broker will be solely responsible for expenses related to resident and non-resident licensing of Broker and its employees.
2.2 Protected Information. Without limiting Broker’s obligations under this Article, Broker agrees that it and its employees, agents and representatives, including Producers:
- Have been advised of the sensitive and confidential nature of information each may receive with regard to applicants, insureds, beneficiaries and claimants (“Protected Information”); and
- Will comply with all
- Laws relating to Protected Information including, but not limited to, the maintenance, safeguarding, disclosure and disposal of the Protected Information; and
- any written instructions provided by E-MGA relating to Protected Information. Broker will implement and maintain such administrative, technical and physical safeguards as necessary to protect the security, confidentiality and integrity of the Protected Information. Broker will promptly notify E-MGA if Broker is aware of any loss or any breach or possible breach of the security of Protected Information.
2.3 The broker agrees to notify E-MGA promptly of any license change, termination, suspension or cancellation of its 2:20 license for any reason whatsoever.
2.4 Form 1099. When required, any Broker that places business through E-MGA. Will provide an IRS Form 1099.
PREMIUM PAYMENTS, BANKING, ACCOUNTING AND FINANCIAL REPORTING
3.1 The broker agrees to pay E-MGA any and all payments that are requested prior to binding any coverage for broker’s clients. Broker further agrees to pay E-MGA any monthly statement as rendered. E-MGA reserves the right to offset outstanding balances on its monthly statement to the broker by credits appearing on the same statement. Broker understands and agrees that deposits on policies to be issued and credits for cancellations and other return premium items not yet appearing on the statement cannot be used to offset balances of current or previous statements without prior approval.
3.2 The broker understands and agrees that once coverage has been placed through any of E-MGA’ facilities, an earned premium charged for the period coverage was in force will be paid to E-MGA. The broker understands and agrees that flat cancellations are not normally permitted and such requests would require management review and approval.
3.3 Risks on which we receive requests to bind may by the discretion of E-MGA be canceled flat (and thus be considered unbound or an expired binder), if we do not receive payment nor completed and signed applications in a timely manner.
3.4 Unless advised otherwise, agency bill audits must be paid in full, disputed in writing with supporting documentation, or returned as uncollectable within 30 days of the Broker receiving the audit notification and/or invoice. Failure to resolve an audit in a satisfactory manner could result in the cancellation of the in-force policy for the client, if applicable.
3.5 Broker agrees to comply with any requests from E-MGA for banking information with regards to direct deposits of commissions and/or ACH withdrawals for premium payments if/when such plans are implemented in order to streamline accounting procedures.
CLAIMS, DISPUTES AND COMPLAINTS
4.1 Broker will immediately report to E-MGA any claim, suit, notice of incident or loss, or threat of litigation relating to coverage under the Policies (“Claim(s)”).
4.2 Broker will immediately report to E-MGA any claim, suit, notice of incident or loss, or threat of litigation relating to the acts or omissions of an insuring carrier, E-MGA, or Broker, or which otherwise involves, or may potentially involve, the Policies or E-MGA or any of its affiliates.
4.3 Broker will cooperate with E-MGA or its designee with respect to any Claim or Dispute, including, but not limited to, preservation of all related documents and data, as required by Law or as directed by E-MGA.
4.4 Broker has no authority to adjust, reserve, settle or negotiate the settlement of Claims or Disputes or to make any statements regarding Claims or Disputes.
4.5 Broker agrees to notify E-MGA in writing of any complaints, inquiries, and/or disputes filed with any regulatory body with respects to a policy issued through E-MGA. Broker will state the facts of the case and their position as clearly and concisely as possible.
5.1 Commission. Broker will receive a commission (“Commission”) based on a percentage of collected Direct Written Premium (which means the gross written premium collected for the Policies less premium returned for Policy cancellations or any other reason) as its sole compensation for all services provided by E-MGA, its affiliates, employees, officers, directors and representatives pursuant to this Agreement. The Commission will include any sales or other similar tax, if any, due from E-MGA relating to the services provided by Broker under this Agreement, and no additional sales or other tax will be charged to E-MGA for these services.
5.2 The Commission percentages vary based on product, carrier, line of coverage, and various other factors, and are subject to change. A commission schedule can be made available to the broker upon request.
5.3 Return Commission. Broker will refund or credit to E-MGA Commissions or other funds paid to Broker on cancelled Policies and return premiums at the same rate as the original premium. If any return premiums are due an insured as a result of any Law or order of an applicable regulatory authority including, but not limited to “rate rollbacks” or similar mechanism, whether or not such action requires insurance brokers, producers or agents to return commissions or fees, Broker will return to E-MGA funds equal to the Commission and fees previously received by Broker with regard to such return premiums. Notwithstanding the foregoing, Broker will not be required to return, as return commission or fees, funds greater than the total Commission paid or otherwise payable to Broker.
5.4 Broker will receive no commission on uncollected audit premium, including those returned as uncollectable by the Broker as well as those turned over to collections by E-MGA and/or the insuring carrier.
6.1 Required Insurance. Broker will maintain errors and omissions coverage issued by insurers rated no less than “A” by A. M. Best Company. The errors and omissions policy will have policy limits not less than $1,000,000. This obligation will survive termination of this Agreement until all liabilities arising hereunder are extinguished to E-MGA’ satisfaction.
7.1 Broker Indemnification. Broker will indemnify, defend and hold harmless E-MGA, and its past, present and future affiliates, successors and assigns, and their shareholders, directors, officers, employees and representatives (“E-MGA Indemnitees”), from and against any claims, liabilities, damages, losses, costs and expenses whatsoever including, but not limited to, reasonable attorneys’ fees incurred by E-MGA Indemnitees which result or arise from the following:
- Any act or omission of any Broker or any of their respective officers, directors, employees, agents or representatives;
- Termination of the Broker;
- Broker’s breach or misuse of Licensed Products, including breach or misuse by Broker’s representatives, agents or employees.
- E-MGA’ failure or alleged failure to comply with any Law arising from Broker’s acts or omissions; or
- Broker’s breach of this Agreement.
7.2 E-MGA Indemnification. E-MGA will indemnify, defend and hold harmless Broker, its affiliates, successors and assigns, and their respective shareholders, directors, officers, employees and representatives (“Broker Indemnitees”), from and against any claims, liabilities, damages, losses, costs and expenses whatsoever including, but not limited to, reasonable attorneys’ fees incurred by Broker Indemnitees which result or arise from the following:
- Any act or omission of E-MGA, its officers, directors, employees or representatives;
- Any violation of Law by E-MGA unrelated to an act or omission of Broker or any Producer;
- Any act or omission of Broker taken in accordance with E-MGA’ written instructions; or
- E-MGA’ breach of this Agreement.
7.3 This agreement is solely between the broker and E-MGA. E-MGA assumes no responsibility toward any policyholder or subproducer with regard to the adequacy, amount or form of any coverage obtained through E-MGA.
7.4 E-MGA understands and agrees to always diligently attempt to procure the most favorable terms and conditions available in the marketplace on behalf of broker and its clients for all lines of business offered to E-MGA, however, the terms, conditions, and rates may not always be “standard”. Broker understands that terms, conditions, rates and limitations will be bound as specified in the quotation and binder issued by E-MGA.
7.5 Broker will have no claim against the insuring carriers of E-MGA and will look solely to E-MGA to recover any costs, expenses or damages incurred by Broker as a result of any act or omission of E-MGA, whether E-MGA is acting on its own behalf or on behalf of the carrier.
7.6 NoWaiver of Rights. Broker will take no action contrary to the best interests of, or waive any rights that, E-MGA or any insuring carrier has against any Broker.
TERM, TERMINATION, AND SUSPENSION OF AUTHORITY
8.1 This agreement shall apply to all coverages in effect on the date of the execution of the agreement and to coverages which may thereafter be terminated by either party at any time on written notice, but the outstanding rights and obligations of the parties shall not be affected.
8.2 E-MGA and broker jointly agree that this agreement shall be governed and construed in accordance with the laws of the states in which Broker and E-MGA conduct business, and that no change or modification of this agreement shall be valid unless it is in conformity with said laws and that such changes, modifications or additions to this agreement must be in writing and subscribed to by both E-MGA and broker.
8.3 If so directed by an insuring carrier, E-MGA may revoke its appointment of any Broker and not to underwrite or issue any policies on behalf of that carrier from such Broker following appropriate notice and otherwise in compliance with Law.
8.4 Termination without Cause. This Agreement may be terminated at any time by either party giving the other party 15 days’ written notice.
8.5 Termination with Cause by E-MGA. Upon notice to Broker, E-MGA may immediately, unless otherwise indicated, terminate this Agreement in whole or in part, for cause, which will include, but not be limited to, the following:
- The revocation or suspension of Broker’s license or that of any of its employees;
- A change of control of Broker, which includes
- a sale, transfer, pledge or issuance of 10% or more of the outstanding stock or other equity interest of Broker,
- a sale, transfer or pledge of a substantial portion of the assets of Broker or (iii) any merger or consolidation of Broker with another entity;
- A change in one or more of the key personnel within the Broker’s office;
- A material breach of this Agreement by Broker and its subsequent failure to
- cure such breach within 10 calendar days of receiving notice from E-MGA or
- provide E-MGA within 10 calendar days of receiving notice from E-MGA a plan to cure such breach, the approval of such plan to be at E-MGA’ discretion. The parties agree that a material breach includes, but is not limited to, failure to comply with binding procedures; failure to remit any funds due E-MGA; failure to follow the reasonable instructions of E-MGA; inducing any insured to cancel or otherwise terminate a Policy; or refusal to permit E-MGA to inspect, copy or audit records of Broker relating to Policies;
- A material breach of any agreement between any E-MGA entity and Broker, its parent, affiliates or
8.6 Termination for Cause by Either Party. Upon notice to the other party, either party may immediately, unless otherwise indicated, terminate this Agreement in whole or in part, for cause, which will include, but not be limited to, the following:
- The other party has liabilities in excess of its assets, is unable to pay its obligations as they become due, makes an assignment for the benefit of its creditors, has a petition for relief under the Bankruptcy Code filed by or against it, has a trustee, receiver or other custodian of its assets appointed, or an order of liquidation or rehabilitation or similar action by any public authority is issued; or
- The other party or its officers, directors or employees engages in acts or omissions which, in the reasonable opinion of the terminating party, constitute fraud, material misrepresentation, misappropriation of funds, gross negligence or willful misconduct.
8.7 Post -Termination Obligations.
- On receipt of notice of termination, Broker may not request binding quotes for any risks with effective dates on or after the effective date of termination of this Agreement and Broker will have no authority to cancel and rewrite Policies that would extend coverage beyond the effective date of termination.
- Except as otherwise provided in this Section 8.8 or as otherwise agreed in writing by the parties, all of the terms, covenants, agreements, obligations, representations and warranties set forth in this Agreement will survive the termination of this Agreement and will continue in full force and effect and in accordance with this Agreement, it being specifically agreed that termination of the Agreement terminates the authority, as determined by E-MGA, but not the obligations of Broker.
- E-MGA will administer the run-off of Policies at its expense in accordance with the same practices, procedures and standards in place during the Term. The run-off obligations of E-MGA will include, but are not limited to, non-renewing the Policies on a timely basis, reporting, and remittance of funds to insuring carriers in accordance with this Agreement.
IN WITNESS WHEREOF, whereas the broker represents and warrants, he is a duly licensed agency, holding a General Lines Property and Casualty license in the states in which Broker and E-MGA conduct business, and based on this warranty E-MGA agrees to use its facilities to attempt to place insurance for the Broker has requested placement of such insurance on his behalf.
The parties have caused this Agreement to be executed by their duly authorized officers as of the day and year set forth below.