Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing and no definition should be considered binding to the point that it renders this Agreement nonsensical:
“Bold Penguin”, or “us” or “we” or “our” refers to our company, known as “Bold Penguin Inc.”; our Site; our Service; or a combination of all or some of the preceding definitions, depending on the context in which the word is used;
“Agreement” refers to these Terms of Service;
“Service” refers to the services that we provide through our Site, including our insurance prospects services and our Site itself;
“Site” refers to our website, boldpenguin.com;
“User” refers to anyone who uses our Service, including general visitors to our Site;
“You” refers to you, the person who is entering into this Agreement with Bold Penguin.
In order to use our Service, you must meet a number of conditions, including but not limited to:
Bold Penguin makes no representations on the reliability of any person with whom a User may enter into contractual relations. You agree to release Bold Penguin from any liability relating to the acts or omissions of any third party.
By accessing the Bold Penguin Site, and using the services provided thereon, you hereby agree that you will not:
Payment can be made via a credit card. Unless otherwise stated, all prices are listed in United States dollars.
Users’ credit cards are not charged until prospects have been delivered. They are charged their full outstanding balance anytime their balance exceeds -$250 or their full outstanding balance at the close of the business day every Friday, whichever comes first.
Where a User conducts a chargeback against Bold Penguin, such User shall be liable to Bold Penguin for the full amount of the chargeback, as well as any reasonable attorneys’ fees, collection agency fees, court costs, disbursements, and other expenses that are incurred by Bold Penguin in its enforcement of its rights under this section.
Bold Penguin relies on the uniqueness of its content to distinguish itself from third parties. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site without receiving our prior written permission.
Bold Penguin must be assured that it has the right to use the content that is posted to its Site by its Users. Such content may include, but is not limited to, photographs, videos, text, audio, and other materials. Whenever submitting content to our Site, you agree that you are granting us a non-exclusive, universal, perpetual, irrevocable, sublicensable, commercial and non-commercial right to use, distribute, sell, publish, and otherwise make use of the content that you submit to us. You warrant to us that you have the right to grant us this right over the content, and that you will indemnify us for any loss resulting from a breach of this warranty and defend us against claims regarding the same.
“Bold Penguin” is a trademark used by us, Bold Penguin Inc., to uniquely identify our site, service, and business. You agree not to use this phrase anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of our Site or its design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law, and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own competing service.
We may revoke our consent for your use of our intellectual property, or any other permission granted to you under this Agreement, at any time. You agree that if we so request, you must take immediate action to remove any usage of our intellectual property that you may have engaged in, even if it would cause a loss to you.
We may from time to time recommend, provide you with access to, or enable third party software, applications, products, services or website links (collectively, “Third Party Services”) for your consideration or use. Such Third Party Services are made available only as a convenience, and purchase, access, or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through the Services or the Bold Penguin Site is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. Under no circumstances shall Bold Penguin be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider. Where permitted by law, these limitations shall apply even if Bold Penguin has been advised of the possibility of such damages.
WE MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO OUR PROVISION OF SERVICES ON THIS SITE. WE SPECIFICALLY, WITHOUT LIMITATION, DISCLAIM ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY OF DATA, OR NON-INFRINGEMENT.
WE WORK TO KEEP THE SERVICES BUG-FREE AND SAFE BUT YOU AGREE TO USE THE SERVICES AT YOUR OWN RISK. BOLD PENGUIN IS PROVIDING THE SERVICES “AS IS” AND “AS AVAILABLE”. IN ADDITION, NEITHER BOLD PENGUIN, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.
YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.
YOU AGREE THAT WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR SITE WHICH PREVENT ACCESS TO OUR SITE TEMPORARILY OR PERMANENTLY.
THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
You agree to indemnify and hold us harmless for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our service to you, including any damages caused by your use of our Site or acceptance of the offers contained on it. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
This Agreement shall be governed by the laws in force in the State of Ohio. The offer and acceptance of this contract are deemed to have occurred in the State of Ohio.
You agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction in Franklin County, Ohio.
If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Bold Penguin shall have the sole right to elect which provision remains in force.
Bold Penguin reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
We may terminate your access to our Site and Service at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Our liability for refunding you, if you have paid anything to us, will be limited to the amount you paid for goods or services which have not yet been and will not be delivered, except in cases where the termination or cancellation was due to your breach of this Agreement, in which case you agree that we are not required to provide any refund or other compensation whatsoever.
Under no circumstances, including termination or cancellation of our Service to you, will we be liable for any losses related to actions of other Users.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
We may amend this Agreement from time to time. When we amend this Agreement, we will e-mail you and require you to accept the amendments in order to be permitted to continue using our Service.
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Bold Penguin must be addressed to our agent for notice and sent via certified mail to that agent. For our agent’s most current contact information, please send a request to email@example.com.
Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Last Modified: September 15, 2017