Terms of Service LAST UPDATED: July 27, 2022 The following Terms of Service (the “Agreement”) are entered into by and between Insurance Marketing Hub, LLC (“IMH”) and the person or entity on whose behalf the Services (as defined below) are used or accessed (the “Subscriber”) governing our self-service direct mail advertising programs (the “Services”). If you do not agree to this Agreement, you are prohibited from using or accessing our Services. We may modify these terms at any time by posting the revised terms to our website. Your continued use of our Service means that you have accepted the changed terms.
1. Grant of License. Subject to the terms and conditions of this Agreement, IMH grants Subscriber a limited, revocable, non-exclusive, non-sublicensable, non-transferable, non-assignable license to access the Services for the Term of this Agreement. Subscriber’s license and use of the Services is permitted solely for the purposes stated in this Agreement and is subject to the restrictions set forth herein. Except for the foregoing limited license, Subscriber does not receive any right, title, or interest in or to the Services and Subscriber acknowledges that IMH retains all right, title, and interest in the Services including all intellectual property rights therein. The foregoing license will automatically terminate upon fulfillment of Subscriber’s order by IMH.
2. Limited Purposes. Subscriber’s access and use of the Services is limited to creating advertising materials for certain insurance products, indicating the categories of consumers to whom such materials should be sent, and mailing such materials via the Services. Subscriber has no right to access, share, or otherwise use the Services for any other purpose.
3. Access and Security. The Services may be accessed by Subscriber through its employees, agents, or representatives that are authorized by Subscriber. Subscriber shall ensure that only authorized individuals shall have access to the Services. Subscriber shall promptly inform IMH of any unauthorized access to the Services. Subscriber is responsible for all access and use of the Services using Subscriber’s information regardless of whether such access and use was authorized by Subscriber. Subscriber shall be responsible for, and liable to IMH for, any security breaches by Subscriber, its employees, agents, or representatives. Subscriber is responsible for maintaining up-to-date contact information associated with Subscriber’s orders at all times.
4. Restrictions. Subscriber shall not: (i) modify or create any derivative works of the Services or the materials provided in connection therewith; (ii) modify the Services or reverse assemble, disassemble, decompile, engineer, or otherwise attempt to derive source code from the Services; (iii) redistribute, encumber, sell, rent, lease, sub-license, pledge, assign or otherwise transfer rights to the Services; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services; or (v) access or use the Services for any unlawful or illegal purpose.
5. Compliance with Law. Subscriber agrees to use the Services in accordance with all applicable federal, state, and local laws and regulations and industry standards. Without limiting the generality of the foregoing, Subscriber will use the Services in compliance with all insurance, marketing, advertising, and privacy and data security laws and regulations. While the Services may provide communication templates, consumer contact data, or other recommendations and features, Subscriber bears sole responsibility for compliance with applicable laws and regulations and sole liability for any and all communications sent using the Services.
6. Privacy Policy. Subscriber’s use of the Services is subject to IMH’s Privacy Policy which is incorporated herein by reference.
7. Payment. Subscriber’s access to and use of the Services is contingent upon payment of all fees as set forth by IMH in the order request form. Subscriber’s failure to timely pay all amounts due shall be grounds for IMH, at its election, to limit or eliminate Subscriber’s access to the Services, including any information or data contained therein. All fees are due when charged by IMH and are non-refundable. IMH may increase the fees it charges at any time. Subscriber is responsible for all taxes and governmental fees associated with Subscriber’s use of the Services.
a. Automatic Renewal. If Subscriber selects a Service that automatically renews as indicated on the order request form, such Service will automatically renew and Subscriber will be charged for each automatic renewal as indicated on the order request form using the same payment method as the original order (or such other payment method as provided by Subscriber to IMH from time to time).
b. Cancellation and Modification. Subscriber will receive a weekly order confirmation of their recurring order as a reminder that we are still mailing on their behalf. Subscriber may cancel a recurring order no later than Tuesday at 12pm Eastern by submitting an order cancellation email to [email protected] that clearly identifies the order. Modifications may only be made by cancelling the original order and resubmitting a new order with the desired changes. Any cancellation requests made after Tuesday at 12pm Eastern may be honored at IMH’s sole discretion. Subscriber is responsible for payment of cancelled orders already in process at time of request.
c. Payment Processing and Other Fees. Subscriber is solely responsible for the payment of processing fees charged by IMH’s payment processer, currently 3.5% for payments by credit/debit card. Subscriber is also solely responsible for any fees or other charges imposed by Subscriber’s financial institution such as insufficient funds fees.
8. Order Process. Client’s submission of an order request form does not create an order for Services until accepted and confirmed via email by IMH. IMH may reject order requests or seek modification from the Subscriber at its own discretion.
9. Confidentiality. During the performance of the Services, each party may disclose (the “Disclosing Party”) or receive (the “Receiving Party”) information of a confidential nature that is of value to the Disclosing Party, whether written or oral, that is (a) marked as “confidential,” or with a similar designation; (b) identified by the Disclosing Party as confidential and/or proprietary before, during, or promptly after presentation or communication; or (c) disclosed to (or otherwise acquired by) Receiving Party in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances or from the nature of the information or data disclosed, that the information or materials should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”).
a. Disclosure and Use. Except as provided below or with the prior written consent of the Disclosing Party, the Receiving Party will not: (a) disclose any Confidential Information of the Disclosing Party other than on a need-to-know basis to its directors, officers, members, managers, employees, affiliates, attorneys and contractors, solely to the extent and only for the purpose of performing or exercising the Receiving Party’s rights and obligations under this Agreement; (b) except as otherwise provided in this Agreement, use Confidential Information other than for fulfilling the obligations or exercising the rights of the Receiving Party under this Agreement; (c) allow others to make copies of such Confidential Information except as is reasonably necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement; or (d) remove or export any such Confidential Information in violation of any applicable law. The Receiving Party shall treat the Confidential Information of the Disclosing Party, and will cause its directors, employees, attorneys, affiliates and contractors to treat such Confidential Information, with at least the same degree of care and protection as it would use with respect to its own Confidential Information of a similar nature, but in no event less than reasonable care.
b. Exceptions. The obligations set forth above shall not apply with respect to the use or disclosure of information: (a) previously known to the Receiving Party without obligation of confidence; (b) independently developed by or for the Receiving Party without use of or access to the Disclosing Party’s Confidential Information and without breaching this Agreement; (c) acquired by the Receiving Party from a third party which is not under an obligation of confidence with respect to such information; or (d) which is or becomes publicly available through no breach of this Agreement. A Receiving Party may make a disclosure of Confidential Information if required either by applicable law or legal process (as a result of legal compulsion or in order to advance a defense to a claim), in response to a request by a governmental authority or in connection with a proceeding before a court, adversary proceeding, administrative proceeding, governmental or regulatory proceeding, if (i) the Receiving Party only discloses that portion of the Confidential Information reasonably required to be disclosed; and (ii) unless prohibited by law, the Receiving Party provides reasonable notice to the Disclosing Party in advance of the disclosure so that the Disclosing Party may seek confidential treatment for the Confidential Information, a protective order or other appropriate remedy, relief or reliable assurances that confidential treatment will be afforded the information so disclosed at the sole cost and expense of the Disclosing Party or consent in writing to having the Confidential Information so produced or so disclosed (which consent will extend solely to the disclosure and production in question).
c. Return and Remedies. Upon the request of the Disclosing Party, or upon termination of this Agreement, Receiving Party will promptly return (or, with written permission from the Disclosing Party, destroy) all copies of any Confidential Information in its possession or control and, upon request, will acknowledge to the Disclosing Party in writing that such delivery or destruction has been fully effected. The Receiving Party acknowledges that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, the Receiving Party agrees that the Disclosing Party will have the right to obtain an immediate injunction enjoining any breach of the Disclosing Party’s confidentiality obligations, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach.
10. Termination. Without limiting its rights elsewhere in this Agreement, IMH may terminate this Agreement and Subscriber’s use of the Services at any time for convenience, with or without notice. In the event IMH terminates this Agreement without cause, notwithstanding any provision herein to the contrary, IMH will provide Subscriber a pro rata refund of paid for but unused Services. In the event IMH terminates this Agreement for cause, including, without limitation, due to (i) Subscriber’s failure to timely pay all fees when due, (ii) Subscriber’s assignment for the benefit of its creditors, filing of a bankruptcy petition, filing of a bankruptcy petition against it, or other insolvency event, or (iii) Subscriber’s breach or likely breach of this Agreement, as determined by IMH in its sole discretion, IMH will not provide any refund.
11. Indemnification. Subscriber will defend (at IMH’s option), indemnify, and hold IMH and its affiliates, subsidiaries, successors, assignees, owners, directors, officers, employees, contractors, representatives, and agents (collectively, “IMH Indemnitees”) harmless from and against any and all claims, governmental investigations, demands, actions, and proceedings, real or threatened, and all losses, judgments, awards, settlements, damages, fines, injuries, penalties, and costs (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or related to (i) any breach or alleged breach of this Agreement, including the representations and warranties contained herein, by Subscriber, (ii) Subscriber’s negligence or misconduct, or (iii) Subscriber’s use of the Services or information obtained therefrom (including without limitation Subscriber transmitting advertising materials through the Service). If IMH elects for Subscriber to provide defense, Subscriber will (i) obtain legal counsel reasonably acceptable to IMH; (ii) permit IMH to participate in the defense using separate counsel at IMH’ cost; and (iii) not settle any action without the prior written consent of IMH (which may not be unreasonably withheld). The foregoing indemnification obligations represent the sole indemnification protections intended and the parties waive all right to any other indemnification protections provided by common law, statute, or otherwise.
12. Warranty Disclaimer. The parties acknowledge that ALL ASPECTS OF THE SERVICES, INCLUDING WITHOUT LIMITATION ALL TEMPLATES, DATA, SOFTWARE, AND MAILING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND IMH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SUBSCRIBER ACKNOWLEDGES THAT IMH DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY SUBSCRIBER FROM IMH SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Without limiting the generality of the foregoing, Client acknowledges that IMH makes no warranties or guarantees regarding response rate, number or performance of leads, accuracy of lead data, or any recommendations made by IMH personnel.
13. Limitation of Liability. IN NO EVENT SHALL IMH BE LIABLE TO SUBSCRIBER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, PUNITIVE OR OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING FROM OR IN CONNECTION WITH THE SERVICES. IF IMH IS EVER DETERMINED TO HAVE ANY LIABILITY TO SUBSCRIBER ARISING DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, SUCH LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO IMH UNDER THIS AGREEMENT DURING THE MONTH IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
14. Relationship of the Parties. The parties hereto are independent contractors. Neither party is an employee, agent, partner or joint venture of the other. Neither party shall have the right to bind the other to any agreement with a third party or to incur any obligation or liability on behalf of the other party.
15. 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 solely and exclusively resolved by arbitration. The demand for arbitration shall be made within a reasonable time after the Dispute has arisen, but in no event shall it be made more than one year from when the aggrieved party knew or should have known of the controversy, claim, or facts forming the basis of the Dispute. The arbitration shall be initiated and conducted according to American Arbitration Association rules and procedures for commercial arbitration, including provisions for the resolution of consumer disputes, if applicable (the “Arbitration Rules”). The arbitration shall be conducted in Cobb County, Georgia before a single neutral arbitrator appointed in accordance with the Arbitration Rules. Either party may bring a Dispute in small claims court in Cobb County, Georgia to the extent permitted by the Arbitration Rules. If the amount in controversy is less than $15,000, the parties agree that the Dispute will be decided on the basis of written submissions without a hearing. The decision of the arbitrator will be final without option to appeal. To the fullest extent permitted by law, the arbitrator shall not have the power to award punitive, special, consequential, or indirect damages against any party. Arbitration costs and fees shall be divided in accordance with the Arbitration Rules. Each party shall be responsible for paying its own attorneys’ fees, costs, and expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. No disputes may be arbitrated on a class or representative basis and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. BY AGREEING TO THIS AGREEMENT, EACH PARTY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO JOIN CLAIMS OR DISPUTES WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION, CLASS ARBITRATION, OR SIMILAR PROCEDURAL DEVICE; AND WAIVES ANY RIGHT IT MAY HAVE TO PRESENT ITS CLAIM OR DISPUTE IN A COURT OF LAW OR BEFORE A JURY. Judgment on the award rendered by the arbitrator(s), if any, may be entered for enforcement purposes in any court having jurisdiction thereof.
16. Governing Law. This Agreement is governed according to the laws of the state of Georgia, without regard to its conflicts of law principles. Subject to the dispute resolution process described above, all claims, disputes, and suits must be brought exclusively in the state or federal courts located in Cobb County, Georgia, and the parties agree to the jurisdiction thereof.
17. Feedback and Trademarks. If Subscriber provide any ideas, suggestions, or recommendations regarding the Services (“Feedback”), IMH will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind and without compensation or notice to Subscriber. By providing Feedback, Subscriber grants IMH a worldwide, perpetual, irrevocable, sublicensable, fully-paid and royalty-free license to use and exploit in any manner such Feedback.
18. Severability and Survivability. If a court of competent jurisdiction holds any provision of this Agreement to be contrary to law or public policy or otherwise unenforceable, the remaining provisions shall remain in full force and effect; and the invalid provision shall remain in force as reformed by the court. Portions of this Agreement which by their nature would survive termination thereof (e.g., disclaimer of warranties, limitation of liability, indemnification) shall be deemed to survive.
19. Waiver. No term or provision of this Agreement shall be deemed waived and no breach consented to or excused, unless such waiver, consent or excuse is in writing and signed by the party claiming to have waived, consented or excused. Should either party consent, waive or excuse a breach by the other party, such shall not constitute a consent to, waiver of, or excuse of any other different or subsequent breach whether or not of the same kind as the original breach.
20. Miscellaneous. Each party represents and warrants to the other party that such party has the legal power to enter into this Agreement, that the signatory hereto has the authority to bind the applicable party, and this Agreement will constitute a legal, valid, and binding obligation of each party in accordance with its terms. Except for the payment of fees by Subscriber, if either party is rendered unable, wholly or in part, to carry out its obligations here under due to a force majeure event (e.g., act of God, strike, industrial disturbance, fire, store, flood, epidemic/pandemic, utility failure, governmental restraint, war, or other similar event), such party’s obligations under this Agreement will be suspended during the force majeure event. Subscriber agrees that ambiguities in this Agreement will not be construed against IMH by attribution of drafting. IMH may assign any of its rights or obligations to others at any time without notice to Subscriber. Subscriber may not assign any of its rights or obligations to others without IMH’ prior written consent.
