This Agreement is made by and between SmartFinancial.com Insurance LLC which does business as SmartFinancial.com (“SmartFinancial,” “we,” “us,” or “our”) which owns and operates an Insurance Comparison Marketplace (“SmartFinancial Sites,” or “SmartFinancial Network”); and you, the Company who wishes to use SmartFinancial (“Buyer,” “Advertiser,” or “Insurance Company”). In consideration of the mutual promises and conditions set forth in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to the following:
1. Acceptance of Terms – Read Carefully.
By accessing or using the software and services offered herein, or by clicking on “Create Account” button or by signing or e-signing you signify your assent to these Terms, and agree to be legally bound by this SmartFinancial Terms of Service (the “Agreement”). If you do not agree to the Terms and Conditions of this Agreement, do not access or use the software or services, as you are not permitted to do so.
The Terms of this Agreement may be revised from time to time by SmartFinancial with or without notice. Advertiser acknowledges that it is Advertiser’s responsibility to periodically review this Agreement for any changes. Advertiser’s continued use of the SmartFinancialNetwork shall serve as Advertiser’s acceptance of the applicable terms set forth in this Agreement, including any future changes hereto.
2. Obligations Regarding Services.
a) Clicks. SmartFinancial agrees, subject to Advertiser’s allocated budgets and Cost per Click (“CPC”) bids, to display Advertiser’s links, rates and other ad units, directing Customers to a URL designated by the Advertiser, on websites controlled by SmartFinancial, including websites owned by third parties who have a contractual relationship with SmartFinancial to place ads from SmartFinancial Advertisers on such websites. Advertiser shall pay an agreed upon Fee as defined in an Insertion Order (“IO”) for each unique Customer who clicks on Advertiser’s ads (each “Click”).
b) Calls and Web Leads. SmartFinancial shall sell to Advertiser telephone calls and web leads from consumers who request insurance quotes (“Leads” or “Calls”) through the SmartFinancial Network, all in accordance with this Agreement. Such Calls/Leads and any and all information provided with such Calls/Leads, including, but not limited to, any personal and contact information, shall be referred to herein as “Consumer Information”.
c) Minimum Volume. SmartFinancial does not guarantee that any minimum quantity of Calls/Leads will be provided, and all Calls/Leads are provided on a nonexclusive basis, unless otherwise outlined in the applicable IO.
d) Ownership of Leads. As between the parties, SmartFinancial will retain sole ownership of all Calls/Leads. Advertiser is hereby granted a limited, revocable, nonexclusive license to use each Lead as permitted herein for ninety (90) days from the date of delivery.
e) No Use of SmartFinancial or other third-party Marks. Advertiser is not permitted to use SmartFinancial’s name, trademarks, service marks, or other intellectual property in any form or fashion without SmartFinancial’s prior written consent. Further, Advertiser is not permitted to use any other registered intellectual property of any third party in Advertising under this Agreement, without first obtaining permission and/or a license from a duly authorized representative of that third party.
3. Compliance with Laws.
a) Compliance with Laws Generally. Each party shall comply with all laws applicable to the conduct of its business and shall perform all of the terms and conditions of this Agreement.
b) Advertiser Compliance. Advertiser will comply with all federal, state, and local laws, rules, and regulations as well as all industry best practices applicable to its business and performance of this Agreement, including, without limitation, all laws and regulations regarding the offer and sale of insurance products including any applicable licensing requirements (“Applicable Advertiser Laws”).
c) Compliance with the Telephone Consumer Protection Act (“TCPA”).
d) Privacy Laws. Each party shall comply with all applicable privacy laws including, but not limited to, the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. §§ 6801 et seq.), the California Consumer Privacy Act, and other applicable federal and state laws and regulations regarding consumer privacy and security of Consumer Information.
4. User Conduct.
a) In utilizing services of SmartFinancial under this agreement, Advertiser shall not;
b) All information provided by Buyer is to be true, accurate, current and complete. Buyer shall update any and all provided information periodically to keep the information on file with SmartFinancial up to date.
5. Payment Terms.
a) Advertiser agrees to pay for all Calls/Leads supplied to its Account. Advertiser will pay in advance by selecting a prepayment/deposit amount to be charged on its credit card. A one-time, non-refundable deposit of at least $250 is required to activate an account. When Advertiser has a remaining balance equal to or less than $50, payment will automatically be drawn against the Advertiser’s credit card or other established prepayment method in the amount specified in the agent portal under the re-bill option. Advertiser’s auto rebill must remain active for at least first 60 days after activating an account with SmartFinancial. If Advertiser's card is not successfully charged or there is a charge-back, SmartFinancial is authorized to charge $25 for every bad transaction. If the amount to be charged equals or exceeds the original pre-payment/deposit, Advertiser's account may be suspended and/or its reserved geographic areas may be forfeited, at SmartFinancial's sole discretion. When a new deposit has been successfully charged, Advertiser's account may be reactivated, at SmartFinancial's sole discretion
b) If SmartFinancial terminates this Agreement or terminates service to Advertiser, any balance owing to SmartFinancial is due and payable within 15 days from termination, a $50 per day collection fee will be charged to Advertiser's account for every day the account is either past due or in the collections status. Advertiser shall reimburse SmartFinancial for all amounts expended collecting past-due accounts including attorney’s fees, court costs, and other reasonable expenses incurred if it becomes necessary to exert these means to effect collection, within 5 days of a SmartFinancial’s request.
c) Advertiser will be responsible for all taxes, fees and other charges that may be assessed against Advertiser in connection with payment of fees to SmartFinancial.
d) Inactivity fee. For all accounts with a positive balance and with no activity in the last 90 days, SmartFinancial will charge a monthly inactivity fee until no balance remains.
6. Confidential Information.
a) Confidential Information Definition. During the Term of this Agreement, Advertiser may have access to certain non-public information of SmartFinancial which is marked “confidential” or “proprietary” by SmartFinancial, contains pricing, customer related information, financial information, imformation related to sales or marketing, or any other information which a reasonable person would consider confidential (“Confidential Information”). Confidential Information does not include information that is generally known and available or is in the public domain through no fault of Advertiser. Without limiting the foregoing, Confidential Information shall include Consumer Information and this Agreement.
b) Protection of Consumer Information and Confidential Information. Advertiser agrees: (a) not to disclose any Confidential Information to any third parties, (b) not to use any Confidential Information for any purpose except as permitted under this Agreement, and (c) to keep the Confidential Information confidential using the same degree of care Advertiser uses to protect its own confidential information but no less than reasonable care in compliance with all applicable laws and regulations. If Advertiser is compelled by law to disclose Confidential Information, it will provide SmartFinancial with at least five (5) business days’ prior written notice of such disclosure (to the extent legally permitted) and any assistance SmartFinancial requests to contest or limit the disclosure. Advertiser acknowledges and agrees that due to the unique nature of both Customer Information and Confidential Information, there can be no adequate remedy at law for any breach of Advertiser’s obligations under this Section 5 and that any such breach may cause irreparable harm to SmartFinancial or to a third party. Advertiser therefore agrees that, in addition to whatever other remedies SmartFinancial may have, SmartFinancial shall be entitled to obtain injunctive or other equitable relief to protect Consumer Information and Confidential Information
7. Call Delivery. Calls are deemed to be delivered when they are connected to Advertiser’s dedicated transfer number during business hours specified in the Advertiser’s portal or as otherwise specified in the applicable IO.
8. Lead Delivery.
a) Delivery Methods. Leads are deemed to be delivered to Advertiser once they are loaded into the SmartFinancial User Interface website. SmartFinancial shall not be responsible for (i) any third-party lead management or agency management software delivery problems; or (ii) any malfunction, inaccuracies, or other problems with an email or other notice sent by a Lead provider in which such Lead provider notifies Advertiser that Leads were loaded into the SmartFinancial User Interface website
b) Volume Monitoring. Advertiser agrees that it is responsible for the ongoing monitoring of its Lead volume. SmartFinancial may increase or decrease its Lead volume at any time in its sole and absolute discretion, and may, but is under no obligation to, inform Advertiser of any such volume modifications such as via SmartFinancial’s customer service department or the SmartFinancial User Interface website.
9 Advertiser Representations & Warranties.
Advertiser makes the following representations and warranties to SmartFinancial:
a) Authority. Advertiser’s execution, delivery, and performance of this Agreement are within Advertiser’s power, have been duly authorized by all necessary corporate, limited liability or other act of Advertiser, and do not contravene or constitute a default under any provision of Advertiser’s governing documents.
b) Binding Agreement. This Agreement has been duly executed and delivered by Advertiser and this Agreement constitutes Advertiser’s valid and binding obligations, enforceable against it in accordance with its terms.
c) Litigation. There are no actions, suits, or proceedings pending against Advertiser or, to the best of Advertiser’s knowledge, threatened against Advertiser, in any manner, in any court, administrative agency, or other forum that are based on or arise out of an agreement or arrangement between Advertiser and a third party that is similar in substance to this Agreement or the activities in which Advertiser will engage as contemplated by this Agreement.
d) Judgments. Except as otherwise previously disclosed by Advertiser to SmartFinancial in writing, there are no judgments, settlements, consent orders, assurances of voluntary compliance, or other agreements between Advertiser and a governmental unit that would affect or otherwise relate to the services contemplated by this Agreement.
a) Termination. Advertiser must provide SmartFinancial with a written notice to terminate this Agreement subject to SmartFinancial’s reasonable established practice to receive and process such notice to terminate up to but not to exceed 15 business days. If for any reason this Agreement is terminated, any remaining balance left in the Advertiser’s account is non-refundable. The remaining balance can be used by Advertiser towards other products offered by SmartFinancial. SmartFinancial reserves the right to terminate this Agreement for any or no reason without prior notice. Upon termination by SmartFinancial, any credit balance remaining from the pre-payment/deposit will be promptly applied and credited to the Advertiser, subject to SmartFinancial’s right to set-off any amounts owed to SmartFinancial.
b) Temporary Pausing. Advertiser may request to temporarily pause delivery in Advertiser’s center for up to fourteen (14) days and Advertiser is responsible for payment of any calls and or leads in Advertiser’s account before confirmation by SmartFinancial that traffic has been paused. Advertiser’s account will automatically turn back on after fourteen (14) days and Advertiser will be responsible for traffic after the account is turned back on.
11. Billing Disputes.
a) If Advertiser disputes the accuracy of a billing, Advertiser must notify SmartFinancial on or before the fifth (5th ) day after Advertiser’s receipt of the applicable bill (“Dispute Period”). Unless disputed within the Dispute Period, such bill will be deemed accurate and due and payable by Advertiser, any and all claims as to accuracy and applicability of billing are hereby waived by Advertiser, and no further disputes related to such bill may be raised. SmartFinancial will review the dispute within a reasonable time and respond in its sole and absolute discretion. During the period of time that the dispute is in process, Advertiser and SmartFinancial will continue business as usual.
b) At all times during and after the dispute, Advertiser agrees to keep all communications regarding the dispute strictly confidential, and limit all discussion regarding the dispute or the surrounding grievance to internal communications between designated employees of SmartFinancial and Advertiser only, and agrees not to distribute, post or otherwise publish details regarding the dispute or their opinion about SmartFianancial as a result of the dispute in any way to third parties, including, but not limited to third party review sites or news outlets. Failure to comply with this Section of the agreement will constitute material breach of this Agreement. Advertiser agrees to reimburse SmartFinancial for any and all direct and indirect costs associated with such Breach, including but not limited to direct, special and consequential damages resulting therefrom.
12. Scope of Use.
a) Access & Use of SmartFinancial Sites. Subject to the terms and conditions of this Agreement, including, without limitation, User’s payment of all applicable fees, SmartFinancial hereby grants to User a limited, revocable, non-exclusive, royalty- free license, solely during the term of this Agreement, subject to all the terms and conditions hereof, to access and use the SmartFinancial Sites remotely over the Internet solely for User’s internal business purposes in connection with its use of the referral services provided by SmartFinancial under this Agreement and solely using the username and password provided to User by SmartFinancial. User may not assign, transfer or sub-license the license granted hereunder without SmartFinancial’s prior written consent. In no event shall User use any trademark, trade name, other use or exploitation of the SmartFinancial.com Sites or any content, code, service mark, icon, logo or other indicator of SmartFinancial without SmartFinancial’s advance express written permission. SmartFinancial reserves the right to limit, suspend or remove access to SmartFinancial Sites at any time, in its sole and absolute discretion.
b) Limitation of Use of Info. Advertiser may not develop or derive for commercial sale any data in any form that incorporates any of the information obtained from the SmartFinancial Network without prior written consent of SmartFinancial. You may only use the site for commercial purposes after registering and paying any applicable fees, subject to the limitations set forth herein. You may not modify, copy, distribute, download for storage on any storage media, display use publish, license, create derivitave works from, transfer or sell any information obtained on the SmartFinancial network, except as specifically defined in this Agreement.
c) Ownership of Advertiser Sites. Advertiser acknowledges that SmartFinancial owns, solely and exclusively, all right, title and interest in and to SmartFinancial Sites, including, but not limited to, (i) all of the content, code, information, data and other materials thereon, including, but not limited to all copyright, trademark, trade name, service mark, patent, trade secret, database and other intellectual property and proprietary rights inherent therein or appurtenant thereto (the “Website Materials”), and (ii) the design and organization of such Website Materials.
13. Disclaimer of Warranties.
ADVERTISER ACKNOWLEDGES AND AGREES THAT SMARTFINANCIAL’S SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY WHATSOEVER AND THAT ADVERTISER’S USE OF THE SERVICES IS AT ITS OWN RISK. NEITHER SMARTFINANCIAL NOR ITS AFFILIATES, LICENSORS OR SUPPLIERS MAKE, AND ADVERTISER DOES NOT RECEIVE, ANY WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. SMARTFINANCIAL AND ITS AFFILIATES, LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT. SMARTFINANCIAL IS NOT INVOLVED IN THE ACTUAL TRANSACTIONS BETWEEN ADVERTISERS AND LEADS. AS A RESULT, SMARTFINANCIAL HAS NO CONTROL OVER THE QUALITY, SAFETY OR LEGALITY OF APPLICATION DATA SUBMITTED BY LEADS OR THE TRUTH OR ACCURACY THEREOF. BECAUSE IDENTITY AUTHENTICATION ON THE INTERNET IS DIFFICULT, SMARTFINANCIAL CANNOT AND DOES NOT CONFIRM THAT LEADS ARE WHO THEY CLAIM TO BE.
14. Limitation of Liability.
IN NO EVENT SHALL SMARTFINANCIAL.COM, ITS AFFILIATES, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, AGENTS, CONTRACTORS OR EMPLOYEES BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST REVENUE, LOST PROFITS OR ANTICIPATED BUSINESS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF OR THE SMARTFINANCIAL.COM SITES OR SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM INFORMATION PROVIDED BY, TO OR THROUGH SMARTFINANCIAL.COM, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, TORT (INCLUDING NEGLIGENCE), CONTRACT (INCLUDING BREACH) OR OTHERWISE. THE AGGREGATE LIABILITY OF SMARTFINANCIAL.COM, ITS AFFILIATES, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, AGENTS, CONTRACTORSAND EMPLOYEES, FOR ANY OTHER DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF, OR THE SMARTFINANCIAL.COM SITES OR SERVICES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY SHALL NOT EXCEED THE AMOUNTS RECEIVED BY SMARTFINANCIAL.COM FROM USER PURSUANT TO THIS AGREEMENT DURING THE CALENDAR QUARTER DURING WHICH SUCH CLAIM(S) ACCRUED.
a) Indemnification by Advertiser. Advertiser agrees to indemnify, defend and hold harmless the SmartFinancial Parties from and against all liability, loss, cost or expense, including reasonable attorneys’ fees, expenses and costs of litigation (hereinafter referred to collectively as “Damages”), which any SmartFinancial Party may sustain by reason of any of the following: (i) any claim by a Lead arising out of a dispute by and between such Lead and Advertiser; (ii) Advertiser’s use or misuse of a SmartFinancial Site; (iii) the performance by Advertiser of its obligations under this Agreement; (iv) Advertiser’s breach or alleged breach of this Agreement, including, without limitation, any inaccuracy of any representation or warranty of Advertiser in this Agreement; or (v) Advertiser’s violation or alleged violation of Applicable Advertiser Laws.
b) Indemnification Process.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to SmartFinancial at the address set forth above and to User at the address set forth on the signature page hereto (or at such other address for a party as shall be specified in a notice given in accordance with this Section 15).
17. Further Assurances.
Each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated hereby.
The parties shall cooperate and work expeditiously to resolve any accounting discrepancies, technology issues, integration issues or other concerns that arise under this Agreement.
19. Relationship of the Parties.
The parties are independent contractors, and nothing in this Agreement will create any other relationship between the parties including, but not limited to, any partnership, joint venture, franchise, sales representative, or employment relationship, or the relationship between principle and User.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
22. Entire Agreement.
23. Amendment and Modifications.
Except as otherwise indicated herein, this Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
User may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of SmartFinancial.
26. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
27. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
SmartFinancial and/or a third-party designated by SmartFinancial may audit Advertiser to Advertiser’s compliance with this Agreement. Advertiser agrees to cooperate fully with such audit, including, but not limited to, promptly providing requested documents and making personnel available for requested interviews. Advertiser will reimburse SmartFinancial for its reasonable audit expenses, including any fees or costs associated with SmartFinancial’s use of third-party auditors, if the applicable audit reveals a material breach of this Agreement by Advertiser.
29. Choice of Law.
All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Ohio.
30. Dispute Resolution.
a) Arbitration. Any dispute, controversy or claim arising out of, relating to, or in connection with, this Agreement or any breach, termination or validity thereof (a “Dispute”) shall be finally settled by arbitration. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of the arbitration, except as they may be modified herein or by mutual agreement of the parties. The seat of the arbitration shall be Columbus, Ohio.
b) Selection of Arbitrators. The arbitration shall be conducted by three arbitrators. The party initiating arbitration (the “Claimant”) shall appoint its arbitrator in its request for arbitration (a “Request”). The other party (the “Respondent”) shall appoint its arbitrator within 30 days of receipt of the Request and shall notify the Claimant of such appointment in writing. If the Respondent fails to appoint an arbitrator within such 30-day period, the arbitrator named in the Request shall decide the Dispute as the sole arbitrator. Otherwise, the two arbitrators appointed by the parties shall appoint a third arbitrator within 30 days after the Respondent has notified the Claimant of the appointment of the Respondent's arbitrator. When the arbitrators appointed by the parties have appointed a third arbitrator and the third arbitrator has accepted the appointment, the two arbitrators shall promptly notify the parties of such appointment. If the two arbitrators appointed by the parties fail or are unable to appoint a third arbitrator or to notify the parties of such appointment, then the third arbitrator shall be appointed by the President of the American Arbitration Association which shall promptly notify the parties of the appointment of the third arbitrator. The third arbitrator shall act as chairman of the panel.
c) Judgment Upon Award. The arbitration award shall be in writing and shall be final and binding on the parties. Judgment upon award may be entered by any court having jurisdiction thereof or having jurisdiction over the parties or their assets.
31. Counterpart Execution.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.