OUR PROGRAMS Recover (Environmental) Recover (Environmental) Request Quote Producer Agreement Producer Agreement THIS Producer Agreement ("Agreement") is made and entered into as of Date* MM slash DD slash YYYY by and between FAIRWEATHER INSURANCE SERVICES, LLC d/b/a NEW EMPIRE INSURANCE SERVICES, a Michigan limited liability company with offices at 214 West Park Avenue, Long Beach, NY 11561 ("NEW EMPIRE") andProducer*("PRODUCER"). NEW EMPIRE and PRODUCER may be referred to in the Agreement as the "Parties" or separately as a "Party". WHEREAS, NEW EMPIRE is duly registered and licensed to act as a Program Manager and Wholesale Insurance Agency with good standing in the states(s) having jurisdiction over its licenses and/or business, and represents that it has the authority to place insurance with certain company(ies) and/or to negotiate, quote, bind, issue, sign, deliver, cancel or non-renew insurance contracts, endorsements, certificates and binders on behalf of the insurance company(ies) with which NEW EMPIRE is doing business; WHEREAS, PRODUCER, a duly licensed insurance producer, desires to place insurance business with NEW EMPIRE; and WHEREAS, NEW EMPIRE is willing to consider the acceptance of such insurance business on such terms and in such manner as specified in this Agreement. In consideration of mutual covenants and agreements contained herein, the Parties agree as follows: INSURANCE PRODUCER LICENSE. Each Party represents that it is a duly licensed insurance producer in good standing in the state or states having jurisdiction over its licenses and/or business and shall at all times throughout the term of this Agreement, maintain all appropriate and valid insurance producer’s licenses. In the event that either Party’s licenses are revoked, suspended, or not renewed for any reason whatsoever, such Party shall promptly notify the other Party by overnight mail or email, but in any event, no later than within forty-eight (48) hours of any such revocation, suspension or non-renewal. NEW EMPIRE shall have the right, upon written request, to require proof of such valid insurance licenses. Any breach of this Section shall be deemed a material breach under this Agreement. PRODUCER'S FIDUCIARY CAPACITY. PRODUCER agrees to pay and remit promptly to NEW EMPIRE any and all premiums, net of allowed commissions, or other fees on such insurance business received from, and bound on behalf of clients of PRODUCER pursuant to this Agreement. PRODUCER shall hold all premium monies received by PRODUCER in a fiduciary capacity for the benefit of NEW EMPIRE and the insurance company(ies) with which NEW EMPIRE is doing business (the “Company” or “Companies”). RETURN OF COMMISSION. PRODUCER shall return to NEW EMPIRE all retained commission on any unearned premium(s), cancelled contract(s) of insurance, and/or reductions in premiums, including, without limitation, those ordered or made by NEW EMPIRE, at the same ratio at which such commissions were originally retained. BINDING AUTHORITY. PRODUCER has no binding authority on behalf of NEW EMPIRE or the Companies, nor may PRODUCER obligate NEW EMPIRE or the Companies to any premium quotation that NEW EMPIRE does not authorize or approve. NEW EMPIRE shall have the absolute right to decline any business submitted by PRODUCER. Requests to bind coverage on a new or renewal policy must be sent to NEW EMPIRE in writing and be received by NEW EMPIRE on or before the inception date of coverage. REMITTANCE OF FEES. PRODUCER shall remit to NEW EMPIRE, all fees within thirty (30) calendar days of the effective date of coverage, new or renewal, on risks bound by PRODUCER. PRODUCER agrees that all fees are non-refundable by NEW EMPIRE. Notwithstanding anything contained herein to the contrary, NEW EMPIRE has the right to change the amount of any fee from time to time upon mailing or e-mailing to PRODUCER notice of the proposed changes not less than thirty (30) calendar days before the effective date of such change. PRODUCER is solely responsible for disclosure and collection of such fees from the insured or prospective insured, and for compliance with any applicable law or regulation with respect to such charges to an insured or prospective insured. For the purposes hereof, “fees” shall include purchasing group membership fees, other purchasing group fees, placement fees, service fees, broker fees, policy fees, consulting fees, or any other fees due NEW EMPIRE, as well as any fees mandated by local, state or federal governments or other governmental organizations, including, but not limited to, surplus lines stamping office fees. REMITTANCE OF PREMIUM. PRODUCER shall remit to NEW EMPIRE full premium, net of allowable commission for each policy bound by NEW EMPIRE, and the full premium for each additional premium endorsement, net of allowable commission, no later than thirty (30) days from the effective date of inception of coverage whether or not collected from the insured. Failure by PRODUCER to remit such premium and/or additional premium within the indicated time frame may result in Notice of Cancellation to the insured and PRODUCER for non-payment of premium, unless otherwise prohibited by law. In the event PRODUCER fails to make payment due within the specified time to NEW EMPIRE, the PRODUCER shall remain liable to NEW EMPIRE for payment of all premiums earned on the policy, and if cancelled, then all premiums earned through the date of cancellation and the PRODUCER will forfeit all rights to commission on such premium. If NEW EMPIRE determines in its sole discretion that it is necessary to seek payment of earned premiums through third party collection, PRODUCER shall pay all costs and reasonable attorney fees incurred by NEW EMPIRE for such collection. Unless otherwise prohibited by law, coverage will be cancelled flat retroactive to the premium due date or the effective date of coverage, as applicable, if the insured does not pay premiums to NEW EMPIRE or PRODUCER within fifteen (15) calendar days following the issuance of Notice of Cancellation. OFFSET. If the PRODUCER shall fail to report all business written or shall fail to pay to NEW EMPIRE premiums collected when due hereunder or shall otherwise breach this Agreement (any such event referred to as a "Default Event"), at NEW EMPIRE’S sole discretion, the PRODUCER’S rights under this Agreement to commissions on all premiums then unpaid to NEW EMPIRE shall thereby forthwith terminate and shall be held by NEW EMPIRE until a final accounting is performed with respect to the PRODUCER. Any commissions or other amounts due to PRODUCER may be held by NEW EMPIRE and applied to offset PRODUCER’S obligations to NEW EMPIRE hereunder. Upon the occurrence of any Default Event, NEW EMPIRE shall have the exclusive right in its discretion and for its benefit to (i) collect any and all outstanding accounts receivable due to NEW EMPIRE on business written through NEW EMPIRE; (ii) solicit the renewal of any business previously written by NEW EMPIRE through the PRODUCER; and (iii) sell or otherwise dispose of such renewals and expiration records relating thereto. COMMISSION. Provided PRODUCER is not in default hereunder, NEW EMPIRE shall pay PRODUCER a commission in an amount equal to such percentage of the premium received by NEW EMPIRE on each policy written under this Agreement as set forth on Schedule A attached hereto. The commission rates set forth on Schedule A may be changed or amended at any time by mutual agreement of the Parties, or upon thirty (30) calendar days prior written notice by NEW EMPIRE to PRODUCER. Notwithstanding the foregoing, to the extent permitted by applicable law or regulation, NEW EMPIRE reserves the right to negotiate commission on any individual risk with PRODUCER prior to placement of coverage. On Risk Purchasing Group (RPG) risks, NEW EMPIRE may elect to bind coverage on a no commission or net basis to PRODUCER. No commission is payable to PRODUCER nor may any commission be deducted by PRODUCER on overdue premiums placed in direct collections by NEW EMPIRE, whether or not ultimately remitted by PRODUCER. No commission is due or payable on any surcharges, fees, or service charges, including but not limited to the inspection and service fees referred to in paragraph 6, or any state-imposed charges, if any. PROGRAM RIGHT OF REJECTION. NEW EMPIRE shall have the absolute right, in its sole discretion, to decline or reject any submission for insurance, and to non-renew any contract of insurance or insurance risk for any underwriting reasons. NEW EMPIRE may cancel or non- renew coverage for any reason at any time by providing such written notice as required by applicable statute or state regulation. CLAIMS. PRODUCER shall promptly report to NEW EMPIRE in writing any and all claims or potential claims against any policy written pursuant to this Agreement. PRODUCER agrees to fully cooperate with the staff of NEW EMPIRE, the Company or Companies, any assigned adjuster, or the designee of any or all of the foregoing, to facilitate the investigation and adjustment of any and all claims. PRODUCER shall not appoint any adjuster or attorney to represent NEW EMPIRE or any of the Companies. OWNERSHIP OF ACCOUNTS AND MAINTENANCE OF INFORMATION. So long as PRODUCER has satisfied its financial obligations to NEW EMPIRE, the use and control of expirations of the accounts submitted to NEW EMPIRE for binding under this Agreement, shall remain the property of PRODUCER. If PRODUCER does not satisfy its financial obligations to New Empire within thirty (30) calendar days of the termination date of this Agreement, NEW EMPIRE shall have exclusive use and control of the expirations subject to Section 7. Producer shall maintain accurate and complete information on each of its accounts submitted to and bound by NEW EMPIRE, including all information customarily maintained as a broker’s expiration list. CONFIDENTIALITY AND NON-DISCLOSURE. PRODUCER and NEW EMPIRE recognize that all non-public or confidential information with respect to the other’s business or accounts, including but not limited to all product, marketing, pricing or financial strategies or materials; customer information; proprietary business processes or technologies; insurance, underwriting files, claims, loss information, vendor lists, risk exposure data, property lists, compensation data, proposals, and other records relating to such accounts as may exist from time to time (“Confidential Information”) are valuable, special and unique assets of each of the Parties. Confidential Information also includes (i) personal or nonpublic information protected by federal or state privacy laws including, without limitation, the Gramm-Leach-Bliley Act and the California Consumer Privacy Act of 2018 (“CCPA”); (ii) protected health information, electronic or otherwise, governed by state privacy laws and/or the federal Health Information Portability and Accountability Act of 1996, as amended, and the regulations enacted pursuant to it and its amendments, including but not limited to 45 C.F.R. § 160.103; and (iii) all other medical or health information protected by applicable law. The Parties agree that the Confidential Information requires protection as follows: Each of the Parties will not, during or after the term of this Agreement, in whole or in part, disclose the Confidential Information of the other Party to any person, firm, corporation, association or other entity for any reason or purpose whatsoever unless required to do so in order to comply with any local, state, or federal law, rule, regulation or order of a court of competent jurisdiction, nor shall a Party make use of any Confidential Information of the other Party for its own purposes or for the benefit of any person, firm, corporation or other entity (except as may be required by this Agreement) under any circumstances, during or after the term of this Agreement, provided that after the term of this Agreement, these restrictions shall not apply to any such information that are then in the public domain through no fault of the receiving Party. Notwithstanding the foregoing, PRODUCER acknowledges that NEW EMPIRE requires access to and knowledge of certain Confidential Information of PRODUCER essential to the performance of its duties under this Agreement and agrees to provide such information. NEW EMPIRE agrees to limit the use of such Confidential Information of PRODUCER to the specific business purpose of this Agreement and no other. Notwithstanding anything to the contrary in this Section, each Party acknowledges and agrees that (i) the transmission, if any, of Confidential Information subject to the CCPA (“CCPA Data”) from one Party to the other Party does not constitute the “selling” of such personal information as the term is defined in the CCPA; (ii) to the extent applicable, it shall use CCPA Data only for the purpose of fulfilling its duties under this Agreement and will not retain, use, or share such data with or disclose it to any third party without the prior written consent of the disclosing Party, except as required by the Agreement or as otherwise required by law; and (iii) it shall not retain, use, or disclose CCPA Data for purposes outside of the direct business relationship between the Parties. INDEMNIFICATION. NEW EMPIRE shall indemnify PRODUCER and hold the PRODUCER harmless against any liabilities, costs and expenses (including reasonable legal fees and court costs)(each a “Loss”) arising out of third-party claims, suits, actions or proceedings to the extent resulting from any negligent acts or omissions of NEW EMPIRE, its agents, representatives or affiliates, in connection with this Agreement or in connection with the activities of NEW EMPIRE, its agents, representatives or affiliates under this Agreement, including the improper use or disclosure of PRODUCER’s Confidential Information. PRODUCER shall indemnify NEW EMPIRE and hold NEW EMPIRE harmless against any Loss arising out of third-party claims, suits, actions or proceedings to the extent resulting from any negligent acts or omissions of PRODUCER, its agents, representatives or affiliates, in connection with this Agreement or in connection with the activities of PRODUCER, its agents, representatives or affiliates under this Agreement, including the improper use or disclosure of NEW EMPIRE’s Confidential Information. It shall be PRODUCER’S responsibility to provide its customers and/or insureds with proper advice as to the adequacy, amount, or form of any insurance coverage or product placed through NEW EMPIRE. NEW EMPIRE shall have no responsibility toward any customer, policyholder, sub-producer, or PRODUCER with regard to the adequacy, amount, or form of any insurance coverage or product placed by PRODUCER through NEW EMPIRE. CANCELLATION OF RISK. PRODUCER may request cancellation of insurance written through NEW EMPIRE for non-payment of premium, or for other reasons in accordance with applicable laws, rules, regulations, policies and endorsements. PRODUCER shall not be entitled to credit for any cancellation until proof of such cancellation has been furnished and is satisfactory to NEW EMPIRE. RENEWALS. PRODUCER shall be responsible to request renewal instructions from NEW EMPIRE in writing regardless of any prior practice of NEW EMPIRE, standard in the industry, custom or usage. PRODUCER must comply with all the renewal guidelines and instructions specified by NEW EMPIRE and provided to PRODUCER in writing. INDEPENDENT CONTRACTOR. Nothing herein contained shall be construed to create the relationship of employer and employee, or principal and agent, between PRODUCER and NEW EMPIRE, or between NEW EMPIRE and any of the PRODUCER’s employees or representatives. Each shall have sole responsibility for the employment, contract and direction of its own employees and agents. It is expressly understood and agreed that PRODUCER is not an employee or agent of NEW EMPIRE for any purpose but is an independent contractor for all purposes and in all situations. PERMISSION OF ADVERTISEMENT. PRODUCER shall not place any advertisement, or use any advertising material, in any form whatsoever, bearing the name of NEW EMPIRE, any of New Empire’s affiliates, Company or any RPG without the prior written consent of NEW EMPIRE. Such approval shall not in any event be construed as charging or binding NEW EMPIRE to bear any cost or expenses thereof. PRODUCER shall not issue or circulate any illustration, circular, statement or memorandum of any sort, misrepresenting the terms, benefits, or advantages of any policy issued pursuant to this Agreement. PREMIUM FINANCING. PRODUCER shall notify and forward to NEW EMPIRE, promptly upon receipt, or upon its knowledge thereof, all correspondence or notices with relation to the financing or proposed financing of insurance premiums on any policy. PRODUCER'S DUTY IN FINANCING. PRODUCER is not permitted, nor shall it hold itself out as the agent or representative of NEW EMPIRE or any of the Companies for the purpose of obtaining premium financing. PRODUCER shall be responsible and not cause NEW EMPIRE or any Company, in any way, to be responsible for any commissions that were retained by the PRODUCER and due back to finance company. NO ASSIGNMENT. PRODUCER may not assign or delegate any of PRODUCER’s rights, interests, or obligations under this Agreement without the written consent of NEW EMPIRE. PRODUCER'S SUBPRODUCER. PRODUCER shall be solely responsible for the payment of any commissions or other payments to PRODUCER’s sub-producers on business submitted to NEW EMPIRE for binding under this Agreement and shall be responsible for making PRODUCER’s sub-producers and clients familiar with the terms, conditions and exclusions of each policy written for PRODUCER. Any liability or obligation of the PRODUCER under this Agreement shall be the sole responsibility of PRODUCER. TERMINATION FOR CAUSE. This Agreement shall be terminated automatically, with or without notice, as of the date any of the following events occur: PRODUCER is indicted for or convicted of committing a felony; PRODUCER fails to maintain insurance broker or producer licenses in all states in which it is conducting business; PRODUCER becomes insolvent or bankrupt, is generally not paying its debts as become due or makes an assignment for the benefit of creditors, or PRODUCER causes or suffers an order for relief to be entered with respect to it under applicable Federal bankruptcy law or applies for or consents to the appointment of a custodian, trustee or receiver for the PRODUCER or for the major part of its property; The merger or consolidation of PRODUCER into any other entity, or the sale, or transfer of substantially all the assets of PRODUCER or a majority of its issued and outstanding stock without the prior written approval of New Empire; This Agreement shall be terminated automatically as of the date that either Party gives written notice to the other of: A breach or abandonment of this Agreement by the other; Fraud by the other Party; or Gross or willful misconduct by the other Party. TERMINATION WITHOUT CAUSE. This Agreement may be terminated by either Party without cause by sending written notice thirty (30) calendar days in advance via certified mail or by a nationally recognized overnight delivery service to the other Party at its last known address. Any such termination shall not affect the rights and obligations of the Parties hereto as to transactions, acts, or other things done by either Party existing prior to the effective date of termination except as otherwise provided herein. DUTIES AFTER TERMINATION. Termination of this Agreement shall not affect the respective rights, liabilities, or obligations of either Party to this Agreement accrued up to the date of termination. Termination of this Agreement shall not affect any amounts due or commissions due either Party accrued up to the date of termination; nor will it affect any amounts due or commissions due with respect to in-force business that continues in-force after the date of termination. Notwithstanding the forgoing, in the event that this Agreement shall be terminated by NEW EMPIRE for cause pursuant to paragraph 22: PRODUCER, sub-producer(s) or client(s) shall be deemed authorized by PRODUCER to pay all premiums, surcharges, fees, and taxes directly to NEW EMPIRE without any liability to PRODUCER. E&O INSURANCE; LIMITATION OF LIABILITY. Both PRODUCER and NEW EMPIRE shall maintain at all times while this Agreement is in effect, an Errors and Omissions Liability policy with limits of at least $1,000,000.00 “per claim” underwritten by an insurance company rated “A-” or better by A.M. Best. PRODUCER’s insurance policies shall be primary to all claims filed against the parties, and such insurance policies shall name NEW EMPIRE as an additional insured, and shall contain a waiver of subrogation against NEW EMPIRE. PRODUCER shall provide, upon request, a copy of an endorsement providing such coverage. In no event shall NEW EMPIRE be liable for any indirect, special, incidental, consequential, exemplary, or punitive damages for any lost profits or other economic loss arising out of or relating to the sale of a product or provision of any service. NOTICES. Any notices required hereunder shall be deemed effective if in writing, delivered in hand by a nationally recognized overnight delivery service, or two (2) business days after mailing, U.S. postage prepaid, by certified mail, return receipt requested, to the Party entitled to notice at the addresses shown in this Agreement or such other address as may be directed by notice given hereafter. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the entire agreement between NEW EMPIRE and PRODUCER, and supersedes any and all prior or contemporaneous representation, negotiation, statement or agreement between NEW EMPIRE and PRODUCER. This Agreement may be varied or modified only in writing and signed by PRODUCER and NEW EMPIRE. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Michigan, without giving effect to conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of laws or any jurisdiction other than those of the State of Michigan. Any legal suit, action or proceeding arising out of or relating to this Agreement or any related transactions between the Parties shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan in each case located in the City of Grand Rapids and County of Kent, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by hand delivery or certified mail in accordance with Section 26 above shall be effective service of process for any suit, action or other proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to venue of any suit, action or proceeding in any such court has been brought in an inconvenient forum. NO WAIVER. Any failure on the part of either Party to require strict compliance with any term(s) or condition(s) of this Agreement, or failure to exercise or declare any default hereunder, shall not operate as a waiver or stop such Party from enforcement or exercise of any of its rights under this Agreement. In addition, no delay or failure on the part of either Party in the exercise of any power or right shall operate as a waiver thereof; nor shall any single or partial exercise of the same preclude any other or future exercise thereof and the rights and remedies of the Parties are cumulative to and are not exclusive of any right or remedies any such holder would otherwise have, and no waiver or consent, given or extended if applicable, shall extend to or affect any obligation or right not expressly waived or consented to. CAPTIONS. The descriptive headings of the various Sections or parts of this Agreement are for convenience only and shall not affect the meaning or construction of any of the provisions hereof. SEVERABILITY. Should any part of this Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining portion. In addition, the remaining portion shall remain in force and in effect as if this Agreement had been executed with the invalid portion thereof eliminated and it is hereby declared the intention of the Parties thereto that they would have executed the remaining portion of this Agreement without including therein any such part, parts or portion which may, for any reason, be hereafter declared invalid. CYBERSECURITY. Each Party represent to the other that it is currently and will continue to be in compliance with Part 500 of Title 23 of the Official Compilation of Codes, Rules and Regulations of the State of New York currently in effect or as amended from time to time (Regulation 500), or its equivalent law or regulation in any and all states, including, but not limited to: (i) maintaining a cybersecurity program designed to protect the confidentiality, integrity and availability of the Party’s Information Systems, (ii) implementing and maintaining a properly approved written policy or policies, setting forth the Party’s policies and procedures for the protection of its Information Systems and Nonpublic Information stored on its Information Systems; and (iii) timely filing all reports and other notices with the appropriate regulatory authorities. SURVIVAL. Paragraphs 2, 3, 11, 12, 13, 14, 25, and 29 shall survive the termination of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the dates set forth after their names:* I have reviewed the above Agreement and agree to abide by its terms and conditions:Print Name*Title*Date* MM slash DD slash YYYY
