This Agreement is made by and between Smartfinancial, a website owned by Contactability.com, LLC (“We”, “Us”, “SmartFinancial” or “SmartFinancial.com”), which owns and operates an Insurance Shopping Marketplace (SmartFinancial Marketplace); and you, the Company who wishes to use SmartFinancial.com (“User”, “Insurance Agent”, “Broker”, “Insurance Advertiser”). 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:
- Acceptance of Terms – Important Please Read Carefully
By clicking on “Create Account” button or by signing or e signing you agree to be legally bound by this SmartFinancial.com® Terms of Service (the “Agreement”).
The Terms of this Agreement may be revised from time to time by SmartFinancial.com. User acknowledges that it is User’s responsibility to periodically review this Agreement for any changes.
User’s continued use of the SmartFinancial.com services and website shall serve as User’s acceptance of the applicable terms set forth in this Agreement, including any changes hereto.
- Obligations Regarding Services
- SmartFinancial shall sell to Insurance Agent calls/leads from consumers who request insurance quotes (“Quote Requests”, “Calls”, “Inbound Calls”) through SmartFinancial’s network of websites (collectively, the “SmartFinancial.com Network”), all in accordance with this Agreement and the terms and conditions set forth on the SmartFinancial.com Sites. Such Quote Requests and any and all information provided with such requests, including, but not limited to, any personal and contact information regarding such consumer calls, shall be referred to herein as “Consumer Information”.
- For each Quote Requests sold to Insurance Agent pursuant to this Agreement, Insurance Agent shall (i) pay for such in accordance with Section 3 of this Agreement; (ii) respond to these requests and calls in a timely matter; (iii) use such consumer information only to quote insurance to the applicable consumer according to any guidelines or requirements provided by SmartFinancial.com; (iv) exercise all due care with respect to such consumer information and the collection, handling, delivery, processing and transmission thereof; (vi) maintain appropriate physical and technical measures to protect such consumer information against accidental loss or unauthorized access or destruction; and (v) Insurance Agent may not re-sell or otherwise transfer the Lead or any Consumer Information therein to any third party
- SmartFinancial will exercise all due care with respect to all Consumer Information and the collection, handling, delivery, processing and transmission thereof, including, without limitation, with respect to confidentiality and security and any consent or authorization necessary to use such information as contemplated hereby. User’s leads, lead lists, and other information that are associated with a particular account using the service are the property of the holder of that account. SmartFinancial will comply with all applicable Privacy Laws with respect to their possession and use of any Consumer Information (including, without limitation, the use, unauthorized access, confidentiality and security of Consumer Information (and procedures related to the foregoing) and all applicable laws regarding email marketing and telemarketing activities.
- SmartFinancial does not guarantee that any minimum quantity of Leads will be provided, and all Leads are provided on a non-exclusive basis, unless otherwise outlined in the Insertion Order.
- Ownership of Leads. As between the parties, SmartFinancial will retain ownership of all Leads. Advertiser is hereby granted a limited, non-exclusive right to use each lead as permitted herein for ninety (90) days from the date of delivery.
- Insurance Agent shall comply with any and all federal, state, local and industry laws, rules, regulations or requirements, including, without limitation, any licensing requirements of the state or states in which the Insurance Agent sells insurance or offers insurance for sale.
- Compliance with Laws
Both Parties shall comply in all material respects with all laws applicable to the conduct of its business and shall perform all of the terms and conditions of this Agreement.
- Insurance Agent will comply with all federal, state, local and industry laws, rules, regulations and requirements applicable to Customer’s and such Permitted Transferee's business and performance of this Agreement, including, without limitation, all laws regarding the offer and sale of insurance products.
- Both Parties shall comply with all Privacy Laws including the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. §§ 6801 et seq.) and applicable federal and state laws and regulations implementing the same.
- Payment Terms
- Insurance Agent agrees to pay for all Calls/Leads supplied to its Account. Insurance Agent 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 Insurance Agent has a remaining balance equal to or less than $50, payment will automatically be drawn against the Insurance Agent's credit card or other established prepayment method in the amount specified in the agent portal under the re-bill option. Insurance Agent’s auto rebill must remain active for at least first 60 days after activating an account with SmartFinancial. If Insurance Agent'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, Insurance Agent'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, Insurance Agent's account may be reactivated, at SmartFinancial's sole discretion.
- If SmartFinancial terminates this Agent Agreement or terminates service to Insurance Agent, any balance owing to SmartFinancial is due and payable within 15 days from termination, a $30 per day collection fee will be charged to Insurance Agent's account for every day the account is in the collections status. Insurance Agent 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.
- Insurance Agent will be responsible for all taxes, fees and other charges that may be assessed against Agent in connection with payment of fees to SmartFinancial.
- 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.
- Calls are deemed to be delivered and payable when they are transferred to Insurance Agent’s dedicated transfer number during specified business hours in the Agent’s portal.
- Leads are deemed to be delivered to Insurance Agent once they are loaded into the SmartFinancial.com Agent Center. SmartFinancial shall not be responsible for (i) any third party lead management or agency management software delivery problems; or (ii) any malfunction or other problems with the email or other notice sent by SmartFinancial in which SmartFinancial notifies Insurance Agent that Leads were so loaded into the Agent Center.
- Insurance Agent agrees to be responsible for the ongoing monitoring of its Lead volume. Insurance Agent may increase or decrease lead volume at any time with the assistance of SmartFinancial’s Customer Service department or through the Agent Center.
- Insurance Agent 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 Insurance Agent's account is non-refundable. The remaining balance can be used by Insurance Agent towards other products offered by SmartFinancial.com. 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 Insurance Agent, subject to SmartFinancial's right to set-off any amounts owed to SmartFinancial.
- Temporary Pausing
- Insurance Agent may request to temporarily pause delivery in Agent’s center for up to (14) days and Agent is responsible for payment of any calls and or leads in Agent’s account before confirmation by SmartFinancial that traffic has been paused. Insurance Agent’s account will automatically turn back on after 14 days and Agent will be responsible for traffic after the account is turned back on.
- Billing Disputes
- insurance Agents must notify SmartFinancial before the fifth (5th) day of the month following the month-end billing if the Insurance Agent disputes. Unless disputed within 15 days of the billing, such billing will be deemed accurate and due and payable by Insurance Agent and no further disputes may be raised.
- Scope of Use
- 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, non-exclusive, royalty-free license, solely during the term of this Agreement, to access and use the SmartFinancial.com 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 owns, solely and exclusively, all right, title and interest in and to SmartFinancial.com 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.
User represents and warrants to SmartFinancial that: (i) such User has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) such User is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (iii) the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such User; (iv) when executed and delivered by such User, this Agreement will constitute the legal, valid and binding obligation of such, enforceable against such user in accordance with its terms; (v) such User will not disparage SmartFinancial, its officers and affiliates in any way whatsoever and will avoid deceptive, misleading or unethical practices that could adversely affect the performance of SmartFinancial’s obligations under this Agreement or, during the term of this Agreement, damage the reputation of SmartFinancial; and (vi) such User’s performance of its obligations under this Agreement does not and will not violate any other agreement between such Party and any third party.
USER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED HEREUNDER “AS IS” WITH NO WARRANTY WHATSOEVER AND THAT ITS USE OF THE SERVICES IS AT ITS OWN RISK. NEITHER SmartFinancial.COM NOR ITS AFFILIATES, LICENSORS OR SUPPLIERS MAKE, AND USER DOES NOT RECEIVE, ANY WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. SmartFinancial.COM AND ITS AFFILIATES, LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON INFRINGEMENT. SmartFinancial.COM IS NOT INVOLVED IN THE ACTUAL TRANSACTIONS BETWEEN USERS AND LEADS. AS A RESULT, SmartFinancial.COM HAS NO CONTROL OVER THE QUALITY, SAFETY OR LEGALITY OF APPLICATION DATA SUBMITTED BY LEADS OR THE TRUTH OR ACCURACY THEREOF. BECAUSE USER AUTHENTICATION ON THE INTERNET IS DIFFICULT, SmartFinancial.COM CANNOT AND DOES NOT CONFIRM THAT LEADS ARE WHO THEY CLAIM TO BE.
- Limitation of Liability
IN NO EVENT SHALL SmartFinancial.COM, ITS AFFILIATES, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS 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 AND 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.
- User agrees to indemnify SmartFinancial against, and agrees to defend and hold SmartFinancial and its respective affiliates, associates, successors and assigns (the “SmartFinancial Indemnified Parties”) harmless 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 Indemnified 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 User; (ii) User’s use or misuse of an SmartFinancial.com Site; (iii) the performance by User of its obligations under this Agreement; (iv) any breach of or inaccuracy of any representation or warranty of User in this Agreement; or (v) any breach of or failure by User to perform any covenant or obligation of Affiliate set out in this Agreement.
- In the event SmartFinancial wishes to make a claim for indemnification under this Section, SmartFinancial (the “Asserting Party”) must notify User (the “Defending Party”) of the nature and basis of such claim for indemnification in writing and in reasonable detail as soon as reasonably practicable after becoming aware of the events giving rise to the claim; provided that the failure of the Asserting Party to promptly give notice shall not relieve the Defending Party of its obligations except to the extent, if any, that the Defending Party shall have been prejudiced thereby.
- If the Defending Party does not object in writing to such indemnification claim within 30 days of receiving notice thereof (60 days if the Defending Party is outside of the United States), the Asserting Party shall be entitled to recover from the Defending Party the amount of such claim; if the Defending Party agrees that it has an indemnification obligation but asserts that it is obligated to pay only a lesser amount, the Asserting Party shall nevertheless be entitled to recover from the Defending Party the lesser amount, without prejudice to the Asserting Party’s claim for the difference.
- If the Defending Party objects in writing to such indemnification claim within 30 days of receiving notice thereof (60 days if the Defending Party is outside of the United States), the validity of the indemnification claim and the extent of the Defending Party’s liability therefor, shall be determined by a court of appropriate jurisdiction.
- If such claim relates to a claim, suit, litigation, or other action by a third party against the Asserting Party or any fixed or contingent liability to a third party (a “Third Party Claim”), the Defending Party shall have the right to assume and control the defense of such Third Party Claim at its own expense, provided, however, the Asserting Party shall have the right to reasonably participate in the defense of the Third Party Claim at its own expense with counsel selected by the Asserting Party. Participation in such defense shall not be deemed an admission of liability as against any such third party. The Defending Party shall have the right to settle any Third Party Claim with the prior written consent of the Asserting Party, which will not be unreasonably withheld.
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 e).
- Further Assurance
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.
- 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.
- Entire Agreement
- Amendment and Modifications
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.
- Successors and Assign
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
- 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.
- 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.
- Dispute Resolution
- 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.
- 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.
- 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.
- 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.