SmartFinancial Publisher Platform Terms & Conditions

The following Terms and Conditions (“Terms”) are applicable to and incorporated by reference into each insertion order (each, an “Insertion Order” and, together with these Terms and any Exhibits, the “Agreement”) entered into by and between SmartFinancial.com Insurance, LLC, an Ohio Limited Liability Company, (“SmartFinancial”), and you the person, corporation or other legal entity (“Affiliate” or “You”). To use the Service, you must accept and agree to these Terms. If you do not agree to these Terms, you are prohibited from using or accessing the Service. We may modify these terms at any time by posting the revised terms to our website. Your continued use of the Service means that you have accepted the changed terms.

WHEREAS, SmartFinancial operates an insurance marketplace, SmartFinancial and other URLs such as SmartFinancial.com (collectively, the “SmartFinancial Platform”) for purposes including, but not limited to: matching interested consumers and businesses to SmartFinancial member advertisers, insurance agents, brokers, and carriers such services being commonly referred to as “marketplace” (collectively, the “Services”).

WHEREAS, Affiliate desires work with SmartFinancial platform and to link websites owned and operated by it (each an “Affiliate Website”) to one or more of the SmartFinancial Sites or tracking phone numbers in order to make the Services available to users of such Affiliate Websites, and SmartFinancial desires to provide such access on the terms and conditions specified in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and intending to be legally bound hereby, the parties agree as follows. To the extent that these Terms are in conflict or inconsistent with an Insertion Order, the Insertion Order shall control.

1. Grant of License.

1.1 SmartFinancial Marks. As used in this Agreement, “SmartFinancial Marks” means SmartFinancial's trademarks, service marks, trade names and logos used by SmartFinancial in connection with the Services including, without limitation, those shown on Exhibit A attached hereto.

1.2 SmartFinancial Content and Articles. As used in this Agreement, (a) “SmartFinancial Content” means all informational text and Articles appearing on the SmartFinancial Sites, except to the extent the copyright to any such material is shown (by the © symbol or otherwise) as being owned by a party other than SmartFinancial; and (b) “Articles” includes each story, explanation, definition, article or other distinct block of text which appears on a SmartFinancial Site.

1.3 License. Subject to the terms and conditions of this Agreement, SmartFinancial grants to Affiliate a limited, non‑exclusive, royalty‑free license to display the SmartFinancial Marks on Affiliate’s Websites solely in connection with the exercise of Affiliate's rights and obligations under this Agreement. Affiliate may not assign, transfer or sub-license the license granted hereunder without the prior written consent of SmartFinancial. Affiliate covenants and agrees that Affiliate's use of the SmartFinancial Marks shall comply in all material respects with SmartFinancial’s policies and with the SmartFinancial Usage Guidelines that are set forth on Exhibit B attached hereto, each as the same may be modified from time to time by SmartFinancial in its sole discretion.

1.4 Ownership of SmartFinancial Marks, SmartFinancial Content and SmartFinancial Software. Affiliate acknowledges and agrees that all right, title and interest in the SmartFinancial Marks, the SmartFinancial Content and the SmartFinancial Software (including but not limited to all content, features and software available on or constituting the SmartFinancial Sites) are owned exclusively by SmartFinancial and/or its licensors, and that Affiliate's rights are strictly limited to the limited license granted in this Agreement. Affiliate agrees that it shall not, during the term of this Agreement or thereafter:

• (a) contest the validity of, or SmartFinancial’s ownership of: (i) the SmartFinancial Marks or the validity of any registration or any application therefor by SmartFinancial, or (ii) the copyright to any SmartFinancial Content;
• (b) claim any ownership or other proprietary right in (i) any of the SmartFinancial Marks, (ii) the copyright to any SmartFinancial Content; (iii) the SmartFinancial Sites; or (iv) any element, derivation, adaptation, variation or name of any of the foregoing;
• (c) take any action inconsistent with SmartFinancial’s ownership of the SmartFinancial Marks, the copyright to the SmartFinancial Content and the SmartFinancial Sites; or
• (d) display or otherwise use the SmartFinancial Content on any Affiliate Website.

Affiliate agrees that its use of the SmartFinancial Marks shall inure exclusively to the benefit of SmartFinancial. All goodwill or reputation in the SmartFinancial Marks shall automatically vest in SmartFinancial whenever the SmartFinancial Marks are used or displayed by Affiliate. Aside from the license granted immediately above, SmartFinancial does not grant you any other license, express or implied SmartFinancial reserves all rights not expressly granted hereunder, including the right to continually evolve the Service and all related technologies and software.

2. SmartFinancial’s Obligations.

2.1 Fees.

• (a) Except as hereinafter provided in Section 2.1(b) and Section 2.3, SmartFinancial shall pay Affiliate a one‑time fee (“Fee”) for (i) each user who is referred to SmartFinancial marketplace for the purposes of obtaining an insurance quote from SmartFinancial’s member advertisers, agents, brokers, carriers (together the “Quote Request” Call and/or Lead), and (ii) the user matches certain filter criteria as described in the written insertion order.
• (b) Notwithstanding anything to the contrary set forth in Section 2.1(a), SmartFinancial shall not pay any Fee to Affiliate in connection with a user’s completion of a Quote Request, if:
  • (i) such user’s system or browser is configured to prevent SmartFinancial from determining that such user followed a link from an Affiliate Website;
  • (ii) such user is an affiliate, employee, officer, director, agent, or associate of Affiliate, or immediate family member of any of the foregoing;
  • (iii) such user completed a Quote Request on a prior occasion for the same type of insurance product in the past six (6) months or submitted the same information more than once in a thirty (30) day time period;
  • (iv) SmartFinancial determines, in its sole discretion, that the completed Quote Request or usage of SmartFinancial marketplace was fraudulent, incentivized or in any other way manipulated to increase fees; or
  • (v) SmartFinancial’s member agent rejects the completed Quote Request within fifteen (15) days of such agent’s receipt of such Call or Lead, and such rejection is determined, in SmartFinancial’s sole discretion, to be supported by reasonable cause.

In the event SmartFinancial pays a Fee to Affiliate in connection with a completed Quote Request that is subsequently rejected by SmartFinancial, SmartFinancial shall have the right to either (i) deduct the amount of such Fee from the next payment due by SmartFinancial to Affiliate following such rejection; or (ii) charge Affiliate the amount of such Fee which charge shall be payable by Affiliate to SmartFinancial within thirty (30) days of Affiliate’s receipt of an invoice therefor.

2.2 Payment. Fees shall be due and payable on the last day of the month following the month in which the Fees are earned, less any taxes SmartFinancial may be required by law to withhold. Fee payments shall be made by ACH or wire transfer; provided, however, if the Fees due for any month are less than sixty dollars (US $60.00) (the “Payment Floor”), SmartFinancial may, in its discretion, hold payment of such Fees until such time as the total amount due to Affiliate is at least equal to the Payment Floor, or if this Agreement is terminated, until the last day of the month following the month in which the termination occurs, whichever is earlier.

2.3 Limitations. Notwithstanding any contrary provision of this Agreement, SmartFinancial shall not be obligated to pay any amount due to Affiliate under this Agreement if any of the following occurs: Affiliate fails to comply with any of the terms or condition of this Agreement; any applicable law or regulation including, but not limited to, the Telephone Consumer Protection Act, the FCC’s Implementing Rules and Regulations, and judicial/regulatory interpretations thereof (collectively, the “TCPA”); or the SmartFinancial Usage Guidelines and/or any other terms and conditions contained in the Exhibits attached hereto; or any of Affiliate’s representations and warranties are false either when made or at any time during the course of this Agreement.

2.4 Reporting. SmartFinancial shall give Affiliate access to its reporting interface for purposes of activity tracking and payments.

3. Affiliate's Obligations.

3.1 Traffic. Affiliate will send real-time Quote Request traffic to SmartFinancial marketplace by linking to one or more SmartFinancial site(s), API or tracking phone numbers as provided by SmartFinancial. The quote Requests will not be obtained by any unsolicited contacts with consumers and will not violate any state or federal law. Affiliate will not directly or indirectly (a) bid on or advertise on any Prohibited Keyword with any search engine or (b) use or display any Prohibited Keyword in any ad or website. Further, for the avoidance of doubt, no incentivized and co-registration traffic is allowed.

3.2 Compliance with Laws. Affiliate shall comply with all laws applicable to the conduct of its business and shall perform all of the terms and conditions of this Agreement. Additionally, you agree that any website or advertising you utilize in connection with the Service will: (a) comply with all applicable laws and regulations, and (b) be operated in accordance with a comprehensive privacy policy that is consistent with industry standards and discloses that third parties may gather and use information about users. You agree that (i) any ads, websites and other digital platforms with which you use the Service (including websites or other digital platforms that are linked to any advertisements hereunder) will comply with all applicable laws, regulations and privacy policies, will not be misleading, libelous, obscene, invasive of others' privacy, or hateful, will not introduce viruses or other malware to our systems or those of end users, and will not infringe any third party's intellectual property or other rights, and (ii) you shall be solely responsible for the compliance of such ads, websites and other digital platforms with this Agreement . Without limiting the foregoing, you expressly agree that any use of tracking pixels, clear gifs or impression beacons shall be solely to enable counting of users, page views, clicks and other actions, and shall not be used to track user activity outside of your website, or remarket or retarget users, on your website or otherwise. SmartFinancial reserves the right to refuse service and remove any ads, websites and other digital platforms that are not in compliance with any of the foregoing. Affiliate further agrees that any violation of applicable laws and regulations or the terms of this Agreement by Affiliate’s employees, contractors, vendors, sub-affiliates, agents, and representatives will be imputed to Affiliate.

3.3 Compliance with TCPA. If Affiliate uses one or more 3rd parties to create, receive, maintain or transmit Leads or Calls, Affiliate shall require each such 3rd party to agree, in writing, to comply with the prior express written consent requirement of the TCPA and all restrictions and conditions to which Affiliate is bound in this Agreement. Further:

• (a) Affiliate acknowledges that the standards, requirements and specifications of the TCPA with respect to obtaining prior express written consent apply to Affiliate with respect to the Leads or Calls they send to SmartFinancial.
• (b) Affiliate represents and warrants to SmartFinancial, that all Leads and Calls: (1) provide SmartFinancial with prior express written consent, as defined by the TCPA, for future telemarketing calls/texts to the Leads/Calls using an automatic telephone dialing system, prerecorded message, and artificial/synthetic voices; (2) were generated after clear and conspicuous disclosure of the consequences of providing the requested consent (i.e. informed the consumer they will receive future calls / texts intended to offer the requested services); (3) sufficiently show the consumer provided their electronic signature and unambiguously agreed to receive such calls / texts at the telephone number(s) they designated; (4) did not require, directly or indirectly, that the consumer execute any agreement as a precondition to receiving the requested services; and (5) the consumer took affirmative action to acknowledge their intention to receive calls / texts for the requested services.
• (c) Affiliate shall provide to SmartFinancial, in advance, its form document(s) containing the exact language of the consent disclosures Affiliate intends to provide consumers and, should SmartFinancial object to such documents, agrees to work with SmartFinancial to resolve SmartFinancial’s objection. Affiliate shall also provide SmartFinancial with advance notice of changes to approved forms. Although SmartFinancial reserves the right to object to Affiliate’s form document(s), SmartFinancial is under no obligation to exercise that right and lack of objection will not be construed as an approval of the form document(s). Notwithstanding the foregoing, Affiliate bears sole responsibility for the compliance of its form document(s) with applicable laws and regulations and the terms of this Agreement. If it becomes necessary, Affiliate shall provide SmartFinancial with a list of the URLs of all Internet landing pages and/or copies of other lead generation sources through which Affiliate generates Leads/Calls for SmartFinancial to confirm or document that they comply with applicable laws and regulations and the terms of this Agreement.
• (d) In addition to the mandatory data fields required under the Agreement for a Lead to be considered a Valid Lead, Affiliate shall include for every Lead in a Lead data file a yes/no indicator of whether the consumer has provided their prior express written consent, the phone type, the actual consent language displayed to consumer on the form that generated the Lead, the consumer’s IP address, and the date and time the consumer provided their consent.
• (e) Affiliate shall bear the burden of proof to show, with respect to all Leads/Calls, that the consumers provided prior express written consent to be called and/or texted. If requested by SmartFinancial, Affiliate will utilize a third-party lead verification service (e.g., Jornaya, Active Prospect) at no additional cost to SmartFinancial. Affiliate shall maintain such documentation as is necessary to demonstrate that all TCPA prior express written consent requirements were met with respect to each Lead/Call and shall promptly provide such documentation to SmartFinancial, at any time and from time to time, upon request. Affiliate agrees that it will retain and make available this consent verification proof for all Leads/Calls for a period of five (5) years from the date each such Lead/Call is generated.
• (f) To the extent Affiliate communicates with persons via text message in furtherance of its activities under this Agreement, Affiliate will abide by industry best practices including, but not limited to, the MMA U.S. Consumer Best Practices for Messaging, CTIA SMS Interoperability Guidelines, and CTIA Short Code Monitoring Handbook.

3.4 Intellectual Property. Affiliate shall not in any way use any intellectual property of any third party or SmartFinancial that is neither owned nor licensed by Affiliate, including but not limited to trademarks, service marks, trade names, copyrights, patents, or other protected materials.

3.5 Complaint Processing. Affiliate will notify SmartFinancial, in a form and manner designated by SmartFinancial, of any consumer or regulatory complaints relating to the services provided by Affiliate to SmartFinancial under this Agreement received, directly or indirectly (e.g., via the Better Business Bureau, an Attorney General, or party to litigation), by Affiliate within twenty-four (24) hours of receipt thereof. Affiliate will fully cooperate with SmartFinancial in the resolution of complaints, regardless of source, including, but not limited to, promptly providing records, call/web interaction recordings, and interviews with personnel as may be requested by SmartFinancial.

3.6 Representation of SmartFinancial Relationship. Unless specifically permitted in writing by SmartFinancial, Affiliate will not represent to any person that it is contacting such person “on behalf of,” “at the request of,” “in partnership with,” or “with authorization of” SmartFinancial (or using similar terminology).

3.7 Data Security. Affiliate will maintain an information security plan that complies with all applicable laws and regulations and is appropriate for its business activities. Affiliate will train its employees and contractors in maintaining reasonable and appropriate physical, technical, and administrative safeguards that meet industry standards to prevent the unwarranted, accidental, or unauthorized access, disclosure, use, modification, or destruction of Confidential Information (as defined in Section 5.2). Affiliate agrees to immediately notify SmartFinancial in the event Affiliate knows or has reason to believe that Confidential Information in Affiliate’s possession or control, or in the possession or control of Affiliate’s service providers, contractors, or affiliates, has been or may have been viewed, accessed, acquired, misappropriated, or breached by an unauthorized person or for an unauthorized purpose (“Data Breach”). Such notification will identify the nature of the incident, the Confidential Information affected or potentially affected, efforts to investigate and mitigate the incident, and corrective actions taken tor planned. Affiliate will fully cooperate with SmartFinancial’s investigation and response to such Data Breach.

3.8 Exclusion of European Residents. Affiliate will implement commercially reasonable policies and procedures to prevent acquiring and/or supplying Leads/Calls to SmartFinancial containing the personal information of individuals residing or located in the European Economic Area or Switzerland.

4. Representations and Warranties.

Affiliate hereby makes the following representations and warranties to Contactability:

4.1 Authority. Affiliate’s execution, delivery, and performance of this Agreement are within Affiliate’s power, have been duly authorized by all necessary corporate, limited liability or other act of Affiliate, and do not contravene or constitute a default under any provision of Affiliate’s governing documents.

4.2 Binding Agreement. This Agreement has been duly executed and delivered by Affiliate and this Agreement constitutes Affiliate’s valid and binding obligations, enforceable against it in accordance with its terms.

4.3 Website Content. No Affiliate Website contains any materials that are obscene, sexually-explicit, targeted to minors, fraudulent, or defamatory of any individual or entity.

4.4 Intellectual Property. The intellectual property assets and intellectual property licenses as currently or formerly owned, licensed or used by Affiliate, and the content of each Affiliate Website do not and will not infringe, violate or misappropriate the intellectual property of any person. Affiliate has not received any communication, and no action has been instituted, settled or, to Affiliate’s knowledge, threatened that alleges any such infringement, violation or misappropriation.

4.5 Litigation. There are no actions, suits or proceedings pending against Affiliate or, to the best of Affiliate’s knowledge, threatened against Affiliate, in any manner, in any court, administrative agency or other forum that are based on or arise out of an agreement or arrangement between Affiliate and a third party that is similar in substance to this Agreement or the activities in which Affiliate will engage as contemplated by this Agreement.

4.6 Federal Tax ID Number. The Federal tax identification number set forth under Affiliate’s name on the signature page hereto is Affiliate’s true and correct Federal tax identification number.

4.7 Insurance. Affiliate has obtained and will maintain commercial general liability insurance covering all operations by or on behalf of Affiliate against bodily injury (including death), property damage (including loss of use), including premises/operations, personal, and advertising injury, products/completed operations, contractual liability, and data breach/cyber liability with limits of not less than $1,000,000 per occurrence and $2,000,000 in aggregate. Affiliate has also obtained and will maintain errors and omissions or professional liability insurance coverage with a limit of not less than $1,000,000. Affiliate will add SmartFinancial as an additional insured and loss payee under Affiliate’s general liability and errors & omissions/professional liability insurance policies. All policies required under this Agreement must be written by insurance companies licensed to issue policies in Affiliate’s state of domicile or principal place of business and having an A.M. Best rating of “A-” or higher. Within five (5) business days of SmartFinancial’s request, Affiliate will provide SmartFinancial with certificates of insurance and all endorsements evidencing all the insurance coverage required by this Agreement.

4.8 Use of Company Trademarks, Service marks, Copyrighted Terms (“Company Marks”) in paid Search Advertising Campaigns.

• (a) Affiliate will not use Company Marks in the title, description or URL of Producer’s search engine listings.
• (b) Affiliate will not bid on Company marks, phrases containing Company marks, or confusingly similar versions of Company marks, for Producer’s paid search advertising, disclaimed portions of the mark accepted.
• (c) Affiliate will not use Company marks as keywords for the purposes of keyword advertising.
• (d) Affiliate will not use commonly misspelled or mistyped versions of Company marks.

4.9 Keyword Search Campaigns. Affiliate will not engage in keyword search campaigns on Google AdWords, MSN Advertising, or similar keyword search platform, on behalf of Company, or any such campaign that in any way redirects to Company websites or uses Company Marks.

4.10 Advertising Requirements for Leads and Traffic. Affiliate represents and warrants that it shall follow and adhere to the following requirements in connection with advertising, obtaining Traffic, and/or sourcing and developing Leads provided to Company under this Agreement:

• a. Incentives. Traffic or Leads may not originate through incentivized websites, portals, web applications, or similar programs, which are not permitted. Affiliate will not offer any payment, rebate, discount, or other monetary incentive to drive Traffic or complete a lead form.
• b. Adware. The display of any advertisement as a direct result of downloadable application on a Consumer’s computer or device is not permitted without Company’s written consent.
• c. Prohibited Sites. Traffic originating from advertising creative or landing page link(s) from the following type of sites, or adjacent to the following content, are prohibited: pornographic sites, prurient content sites, or sites or content that promote sexually explicit or obscene materials; sites or content that promote violence, hate or discrimination of any type based on race, sex, religion, nationality, disability, sexual orientation, or age, or constitute or promote illegal activities; or sites or content that are reasonably deemed to be offensive in nature, degrading, libelous, or profane.
• d. Mobile Distribution. Traffic or Leads may not originate through advertisements, messages, or materials of any kind distributed via mobile distribution, including without limitation, SMS or text messages or outbound calls (collectively, “Mobile Distribution’). Mobile Distribution does not include emails opened on a mobile device, nor does it include text messages or outbound calls made to a Consumer after obtaining consent from such Consumer in compliance with Applicable Laws.
• e. Unsolicited Email and Electronic Communications. Affiliate and its Network Affiliates will not send unsolicited email driving or promoting the Traffic or Leads; Affiliate must either obtain permission to send any emails to the Consumer or, alternatively, the Consumer must have registered his or her email on or through a website in which a prominently posted privacy policy informed the Consumer of the collection and use of his or her email for such purposes (collectively “Permission-Based Email”), and the Consumer has not withdrawn said permission to send commercial email. Any advertisement(s) to drive or originate the Traffic or Leads shall be placed in a manner so that the display, transmission, accessibility, and form thereof (including legally required notices and disclaimers concerning the receipt of unsolicited electronic submissions) complies with Applicable Laws.
• f. Consumer Affirmative Consent. Affiliate represents and warrants that, for each and every e-mail address used to drive Traffic or obtain Leads pursuant to this Agreement, Affiliate (or the applicable Network Affiliate) will have received and recorded from each such Consumer “affirmative consent” (as such term is defined in the CAN-SPAM Act) to receive marketing emails as contemplated by this Agreement. Affiliate agrees to provide proof of such affirmative consent to Company within three (3) business days of written request by Company. Such proof shall include, at a minimum, the IP address of the computer or device from which the Consumer provided affirmative consent, that the Consumer provided such affirmative consent, the date and time when the affirmative consent was received, and any applicable URL site where such Consumer provided such affirmative consent. All such records of the Consumer’s affirmative consent, which shall be in the format of a TrustedForm or Journaya style certificate record, shall be retained for at least five (5) years from the date of consent.
• g. Opt-Out Requests. If Affiliate is obtaining Traffic or Leads via email marketing, all emails sent by Affiliate must include a functional unsubscribe option. Each email must contain opt-out instructions. Affiliate shall comply with all opt-out requests within 5 (five) calendar days from the date of the opt-out request or as required by Applicable Laws, whichever is first.
• h. Chat Rooms; Instant Messaging Software. Affiliate shall not attempt to generate Traffic or identify Leads through chat rooms, instant messaging, bulletin boards, or similar methods.
• i. Misleading Advertising. Affiliate shall not use creatives or advertising to generate Leads or Traffic for products or services that do not exist or that would constitute false or misleading advertising.

5. Confidentiality.

5.1 Ownership and Privacy of Customer Data. All information provided by users in Quote Request Calls and all other information provided by users of the SmartFinancial Sites (collectively, “Customer Data”) shall be owned by SmartFinancial. Customer Data includes all information provided to SmartFinancial by a user, directly or indirectly, whether provided in the Quote Request Call or otherwise, and whether concerning the user or concerning the user's family members, employees, business associates or others. For avoidance of doubt, and not limitation, all Lead/Call data provided by Affiliate to SmartFinancial shall be Customer Data. Customer Data does not include information that (i) is unrelated to the Services and the SmartFinancial Sites and (ii) is provided by the user directly to Affiliate. Affiliate acknowledges and agrees that, except as required to satisfy its obligations under this Agreement, it (a) shall have no rights with respect to any Customer Data; (b) shall not intercept, receive or maintain any Customer Data, and (c) shall prevent disclosure of and shall promptly destroy any Customer Data that comes into Affiliate's possession.

5.2 Other Confidential Information. During the term of this Agreement, Affiliate may have access to certain non‑public information of SmartFinancial which is marked “confidential” or “proprietary” by SmartFinancial or 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 Affiliate. Without limiting the foregoing, Confidential Information shall include Customer Data.

5.3 Protection of Customer Data and Confidential Information. Affiliate 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 Affiliate uses to protect its own confidential information but no less than reasonable care in compliance with all applicable laws and regulations. If Affiliate 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. Affiliate acknowledges and agrees that due to the unique nature of both Customer Data and Confidential Information, there can be no adequate remedy at law for any breach of Affiliate's obligations under this Section 5 and that any such breach may cause irreparable harm to SmartFinancial or to a third party. Affiliate 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 Customer Data and Confidential Information.

6. Indemnification.

6.1 Indemnification by Affiliate. Affiliate will defend, indemnify, and hold SmartFinancial and its affiliates, subsidiaries, successors, assignees, owners, directors, officers, employees, contractors, representatives, and agents (collectively, “SmartFinancial 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) (collectively, “Losses”) arising out of or related to (i) any breach or alleged breach of this Agreement, including the representations and warranties contained herein, by Affiliate or (ii) Affiliate’s gross negligence or willful misconduct.

6.2 Indemnification Process.

• (a) In the event SmartFinancial wishes to make a claim for indemnification, SmartFinancial (the “Asserting Party”) must notify Affiliate (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.
• (b) If the Defending Party does not object in writing to such indemnification claim within 30 days of receiving notice thereof, 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.
• (c) If the Defending Party objects in writing to such indemnification claim within 30 days of receiving notice thereof, 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.
• (d) 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 and using counsel acceptable to Asserting Party, 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.

7. Limitation of Liability.

SMARTFINANCIAL MAKES NO WARRANTY REGARDING THE SMARTFINANCIAL SITES OR THE SERVICES, AND SMARTFINANCIAL HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON‑INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SMARTFINANCIAL DOES NOT WARRANT THAT THE SMARTFINANCIAL SITES OR THE SERVICES WILL OPERATE ERROR‑FREE OR WITHOUT INTERRUPTION. IN NO EVENT SHALL SMARTFINANCIAL BE LIABLE TO AFFILIATE 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, THIS AGREEMENT, OR WITH ANY DEFECT, MALFUNCTION OR NON‑OPERATION OF ANY SMARTFINANCIAL SITE. IF SMARTFINANCIAL IS EVER DETERMINED TO HAVE ANY LIABILITY TO AFFILIATE ARISING DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH THE SERVICES, THE SMARTFINANCIAL SITES, OR THIS AGREEMENT, SUCH LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAYABLE TO AFFILIATE UNDER THIS AGREEMENT DURING THE CALENDAR QUARTER ENDING IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

8. Term and Termination.

8.1 Term. Except as hereinafter provided, the term of this Agreement shall commence on the date the parties accept the terms and conditions of this Agreement which shall be evidenced by the signatures of the parties’ respective authorized representatives below and shall continue for one year. The term shall automatically renew for successive one-year periods thereafter until terminated as provided herein.

8.2 Termination for Cause.

• (a) Affiliate may terminate this Agreement immediately upon delivery of written notice to SmartFinancial if (i) SmartFinancial terminates entirely or materially reduces the Services; or (ii) the SmartFinancial Site to which Affiliate maintains one or more links ceases operation, other than a temporary outage in the ordinary course of business.
• (b) SmartFinancial may terminate this Agreement immediately upon delivery of written notice to Affiliate if (i) Affiliate breaches any term, covenant or condition of this Agreement; or (ii) Affiliate causes or permits to exist any circumstance which SmartFinancial believes, in its sole discretion, disparages, devalues or reflects poorly on SmartFinancial, the SmartFinancial Sites, the Services, or on the reputation or goodwill of the SmartFinancial Marks.

8.3 Termination Without Cause. Either party may terminate this Agreement at any time without cause upon delivery of thirty (30) calendar days prior written notice to the other party.

8.4 Effect of Termination. Upon the termination of this Agreement for any reason: (a) the limited license granted to Affiliate herein shall immediately terminate, (b) Affiliate shall immediately cease all use of the SmartFinancial Marks and Services, (c) Affiliate shall immediately terminate all links from Affiliate's Websites to the SmartFinancial Sites, (d) Affiliate shall promptly return all Confidential Information, and (e) no Fees shall be payable to Affiliate commencing upon the date of termination of this Agreement except those that were already payable to Affiliate prior to such date as provided herein; provided, however, in the event SmartFinancial terminates this Agreement pursuant to Section 8.2, SmartFinancial may withhold payment of any amounts otherwise due to Affiliate and take appropriate legal action to recover its damages.

8.5 Survival. Except to the extent inconsistent with the provisions of Section 8.4, the provisions of the Agreement shall survive any termination or expiration of the limited license granted Affiliate herein.

9. Notice.

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 the Parties at the addresses set forth below each Party’s name 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 9).

10. General Provisions.

10.1 Expenses. Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement and each other agreement, document and instrument contemplated by this Agreement and the transactions contemplated hereby and thereby shall be paid by the party incurring such costs and expenses.

10.2 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.

10.3 Cooperation. The parties shall cooperate and work expeditiously to resolve any accounting discrepancies, technology issues, integration issues or other concerns that arise under this Agreement.

10.4 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 agent.

10.5 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

10.6 Severability. 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.

10.7 Entire Agreement. This Agreement and related exhibits and schedules constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

10.8 Amendment and Modifications. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.

10.9 Waiver. 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.

10.10 Assignment. No party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party.

10.11 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.

10.12 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.

10.13 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.

10.14 Dispute Resolution.

• (a) 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) 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) 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.

10.15 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.

10.16 Audits. SmartFinancial and/or a third-party designated by SmartFinancial may audit Affiliate to determine Affiliate’s compliance with this Agreement. Affiliate agrees to cooperate fully with such audit including, but not limited to, promptly providing requested documents and making personnel available for requested interviews. Affiliate 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 Affiliate.