Updated September 17, 2019
This Agreement is made by and between Policybind LLC; and you, the Company who wishes to use Policybind (“Buyer,” “Advertiser,” or “Insurance Company”). In dconsideration 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 clicking on “Submit” button or by signing or e-signing you agree to be legally bound by this Policybind® Terms of Service (the “Agreement”). The Terms of this Agreement may be revised from time to time by Policybind. Advertiser acknowledges that it is Advertiser’s responsibility to periodically review this Agreement for any changes. Advertiser’s continued use of the Policybind Network 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. Policybind 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 Policybind, including websites owned by third parties who have a contractual relationship with Policybind to place ads from Policybind 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. Policybind shall sell to Advertiser telephone calls and web leads from consumers who request insurance quotes (“Leads” or “Calls”) through the Policybind 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”.
b.1. For each Call/Lead sold to Advertiser pursuant to this Agreement, Advertiser (i) shall pay for such Call/Lead in accordance with this Agreement; (ii) unless expressly permitted by the applicable IO, shall not re-sell or otherwise transfer the Lead or any Consumer Information therein to any third party; (iii) shall use such Consumer Information only to quote insurance to the applicable consumer according to any guidelines or requirements provided by Policybind; (iv) shall exercise all due care with respect to such Consumer Information and the collection, handling, delivery, processing and transmission thereof; and (v) shall maintain appropriate physical and technical measures to protect such Consumer Information against accidental loss or unauthorized access or destruction.
b.2. Policybind will exercise reasonable 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. Advertiser’s leads, lead lists, and other information that are associated with a particular account using the service are the property of Advertiser.
b.3. Advertiser shall (i) have representatives available to answer inbound calls from Policybind (ii) not sell, disclose, transfer, assign or give any Consumer Information provided by or through Policybind to any other person, company or organization; (iii) protect all Consumer Information at all times from any wrongful use or disclosure.
b.4. Advertiser may only reject a Lead if and to the extent permitted by the applicable IO. If Advertiser rejects a Lead, Advertiser shall not contact, use, sell, or dispose of such Lead, or permit its employees, contractors, agents, or representatives to contact, use, sell, or dispose of such Lead . c) Minimum Volume. Policybind does not guarantee that any minimum quantity of Calls/Leads will be provided, and all Calls/Leads are provided on a non-exclusive basis, unless otherwise outlined in the applicable IO.
d) Ownership of Leads. As between the parties, Policybind will retain ownership of all Calls/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.
e) No Use of Policybind Marks. Advertiser is not permitted to use Policybind’s name, trademarks, service marks, or other intellectual property in any form or fashion without Policybind’s prior written consent.
3. Compliance with Laws.
a) Compliance with Laws Generally. Each party 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.
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”).
c.1. Policybind represents and warrants to Advertiser that, if required per the applicable IO, all Leads and Calls: (1) were generated after clear and conspicuous disclosure that the consumer will receive future calls / texts intended to offer the requested services; (2) demonstrate the consumer agreed to receive such calls / texts at the telephone number(s) they designated; (3) did not require, directly or indirectly, that the consumer provide prior express written consent for future telemarketing calls/texts as a precondition to receiving the requested service ; and (4) required the consumer take affirmative action to acknowledge their intention to receive calls / texts for the requested services.
c.2. If Policybind uses one or more third parties to create, receive, maintain, or transmit Leads or Calls, Policybind shall require each such third party to agree, in writing, to comply with the prior express written consent requirement of the 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. 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 $500 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 Policybind. If Advertiser’s card is not successfully charged or there is a charge-back, Policybind 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 Policybind’s sole discretion. When a new deposit has been successfully charged, Advertiser’s account may be reactivated, at Policybind’s sole discretion.
b) If Policybind terminates this Agreement or terminates service to Advertiser, any balance owing to Policybind is due and payable within 15 days from termination, a $30 per day collection fee will be charged to Advertiser’s account for every day the account is in the collections status. Advertiser shall reimburse Policybind 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.
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 Policybind.
d) Inactivity fee. For all accounts with a positive balance and with no activity in the last 90 days, Policybind will charge a monthly inactivity fee until no balance remains.
e) Refund of Balance: Partial and full refunds will be subject to a 3% processing fee.
5. Confidential Information.
a) Confidential Information Definition. During the Term of this Agreement, Advertiser may have access to certain non-public information of Policybind which is marked “confidential” or “proprietary” by Policybind 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 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 Policybind with at least five (5) business days’ prior written notice of such disclosure (to the extent legally permitted) and any assistance Policybind 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 Policybind or to a third party. Advertiser therefore agrees that, in addition to whatever other remedies Policybind may have, Policybind shall be entitled to obtain injunctive or other equitable relief to protect Consumer Information and Confidential Information.
6. 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.
7. Lead Delivery.
a) Delivery Methods. Leads are deemed to be delivered to Advertiser once they are loaded into the Policybind User Interface website. Policybind 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 Policybind User Interface website.
b) Volume Monitoring. Advertiser agrees that it is responsible for the ongoing monitoring of its Lead volume. Policybind may increase or decrease its Lead volume at any time and may, but is under no obligation to, inform Advertiser of any such volume modifications such as via Policybind’s customer service department or the Policybind User Interface website.
8. Advertiser Representations & Warranties. Advertiser makes the following representations and warranties to Policybind:
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 Policybind 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.
9. Term.
a) Termination. Advertiser must provide Policybind with a written notice to terminate this Agreement subject to Policybind’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 Policybind. Policybind reserves the right to terminate this Agreement for any or no reason without prior notice. Upon termination by Policybind, any credit balance remaining from the pre-payment/deposit will be promptly applied and credited to the Advertiser, subject to Policybind’s right to set-off any amounts owed to Policybind.
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 Policybind 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.
10. Billing Disputes.
If Advertiser disputes the accuracy of a billing, Advertiser must notify Policybind on or before the fifth (4th) 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 and no further disputes related to such bill may be raised.
11. Scope of Use.
a) Access & Use of Policybind Sites. Subject to the terms and conditions of this Agreement, including, without limitation, User’s payment of all applicable fees, Policybind hereby grants to User a limited, non-exclusive, royalty-free license, solely during the term of this Agreement, to access and use the Policybind Sites remotely over the Internet solely for User’s internal business purposes in connection with its use of the referral services provided by Policybind under this Agreement and solely using the username and password provided to User by Policybind. User may not assign, transfer or sub-license the license granted hereunder without Policybind’s prior written consent. In no event shall User use any trademark, trade name, other use or exploitation of the Policybind.com Sites or any content, code, service mark, icon, logo or other indicator of Policybind without Policybind’s advance express written permission.
b) Ownership of Advertiser Sites. Advertiser acknowledges that Policybind owns, solely and exclusively, all right, title and interest in and to Policybind 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.
12. Disclaimer of Warranties. ADVERTISER ACKNOWLEDGES AND AGREES THAT POLICYBIND’S SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY WHATSOEVER AND THAT ADVERTISER’S USE OF THE SERVICES IS AT ITS OWN RISK. NEITHER POLICYBIND NOR ITS AFFILIATES, LICENSORS OR SUPPLIERS MAKE, AND ADVERTISER DOES NOT RECEIVE, ANY WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. POLICYBIND AND ITS AFFILIATES, LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NONINFRINGEMENT. POLICYBIND IS NOT INVOLVED IN THE ACTUAL TRANSACTIONS BETWEEN ADVERTISERS AND LEADS. AS A RESULT, POLICYBIND 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, POLICYBIND LLC CANNOT AND DOES NOT CONFIRM THAT LEADS ARE WHO THEY CLAIM TO BE. 13. Limitation of Liability.
IN NO EVENT SHALL POLICYBIND LLC, 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 POLICYBIND LLC SITES OR SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM INFORMATION PROVIDED BY, TO OR THROUGH POLICYBIND LLC, 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 POLICYBIND LLC, 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 POLICYBIND.COM SITES OR SERVICES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY SHALL NOT EXCEED THE AMOUNTS RECEIVED BY POLICYBIND LLC FROM USER PURSUANT TO THIS AGREEMENT DURING THE CALENDAR QUARTER DURING WHICH SUCH CLAIM(S) ACCRUED.
14. Indemnification.
a) Indemnification by Advertiser. Advertiser agrees to indemnify, defend and hold harmless the Policybind 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 Policybind 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 Policybind 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.
b.1. In the event Policybind wishes to make a claim for indemnification under this Section, Policybind (the “Asserting Party”) will notify Advertiser (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.2. 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.
b.3. 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.
b.4. 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.
15. 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 Policybind 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).
16. 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.
17. 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.
18. 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.
19. Headings.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
20. 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.
21. Entire Agreement.
This Agreement, together with any IO and the Terms of Use, Privacy Policy, and Return Policy found on the Policybind Sites, which are incorporated by reference herein, constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
22. 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.
23. 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.
24. Assignment.
User may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Policybind. 25. 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.
26. 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.
27. Audits.
Policybind and/or a third-party designated by Policybind 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 Policybind for its reasonable audit expenses, including any fees or costs associated with Policybind’s use of third-party auditors, if the applicable audit reveals a material breach of this Agreement by Advertiser.
28. 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 Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Florida.
29. 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 West Palm Beach, Florida.
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. 30. 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.
Policybind LLC
205 Coral Road #1
Boynton Beach, FL 33435
561-903-0403
