TERMS AND CONDITIONS - BUYER'S AGREEMENT
1) SIMA's Obligations
The Senior Insurance Marketing Association - ("SIMA") agrees to provide or perform the following:
(a) Provide aged leads ("Names") to Buyer via email or other electronic means of people requesting quotes for insurance, all in accordance with this Agreement and the requested geography/volume information shown above on this form.
(b) Provide replacement aged leads for leads which are missing key contact information e.g. name, phone, email, address.
2. Buyer's Obligations
Buyer agrees to provide or perform the following:
(a) To pay for any and all Names sent by SIMA in accordance with the payment provisions submitted in the Agreement herein, and the cost per lead price(s) shown above.
(b) Contact each Name within 5 business days of receiving such Name for purposes of verifying the accuracy of the information provided by SIMA and to provide the requested insurance quotation.
(c) Leads provided under this Agreement are not returnable unless the lead has missing or obviously bogus key contact information, or are dupllicates, and are therefore subject to RETURNS provisions and process as stated below.
(d) Not to disclose, sell, transfer, distribute, assign or give any Lead provided by or through SIMA to any other person or organization without the express written consent of SIMA.
(e) Use Names solely for the purpose of qualifying and sending quotations for insurance or insurance-related products requested by such Names.
(f) Comply with any and all federal, state, local and industry laws, rules, regulations or requirements up to and including licenses required to sell the insurance quoted by Buyer in the state(s) in which any geographic area is selected by Buyer in the Buyer Profile(s) contained in the enrollment cover sheet. Specifically, Buyer is aware that leads generated by SIMA or its supply partners do not necessarily contain a legal disclaimer allowing for communications with the consumers via pre-recorded messages (including robocalls), as may be required by the Telephone Consumer Protection Act or individual local and state laws. SIMA specifically does not authorize Buyer to contact consumers via such a method. Further, SIMA expressly does not authorize the use of SPAM to any Names, and Buyer must comply with the CAN-SPAM Act as well as all aspects of the Telephone Consumer Protection Act.
(g) Provide quotes only from those insurance companies which Buyer is authorized and/or licensed to sell insurance and/or is authorized to use the insurance company’s marks.
3. Payment Terms and Disputes
The following payment terms shall apply to Buyer's account under this Agreement:
(a) Buyer will be asked to pay in advance for leads (i.e., Names) before they are delivered.
(b) Buyer shall be responsible to pay all applicable sales, use, and other taxes and all duties which are levied or imposed by reason of the transaction(s) contemplated hereby, excluding, however, income taxes on net profits which may be levied against SIMA.
(c) If Buyer's card is not successfully charged or there is a charge-back, and the amount of the price of the Names to be charged equals or exceeds the original Deposit, Buyer's account may be suspended and/or its reserved geographic areas may be forfeited, at SIMA's' sole discretion. Under such circumstances, a loss of priority on SIMA's cooperative network may occur. When the Deposit has been successfully reestablished, Buyer's account may be reactivated, in SIMA's' sole discretion, subject to any setup fees.
(d) If Buyer or SIMA terminates this Buyer Agreement or SIMA terminates service to Buyer, any balance owing to SIMA is due and payable within 5 business days from the date of such termination.
(e) Buyer shall reimburse SIMA for all amounts expended by SIMA in attempting to collect any amounts due to it by Buyer, including attorneys' fees and costs incurred in connection with such collection efforts. Such amounts are in addition to any interest that may accrue on overdue amounts owed.
(f) Buyer must accept and pay for all Names (Leads) unless the Name is not accepted pursuant to the procedure detailed in RETURNS section below.
4. Term and Termination
The term of this Agreement shall begin on the effective date and continue until terminated. Buyer may terminate this Agreement upon at least 5 days prior written notice to SIMA. SIMA reserves the right to terminate this Agreement for any or no reason without prior notice. Upon termination, any credit balance remaining from the Deposit (if such a Deposit exists) will be used to send the remaining leads purchased by Buyer, subject to SIMA's right to set-off any amounts owed to SIMA. Section 2 of this agreement will survive termination thereof.
5. Returns
Leads may be deemed returnable under any of the following conditions:
(a) the lead is determined by the Buyer to contain missing or obviously bogus information (e.g. "Donald Duck")
(b) the lead is determined to be a duplicate from a lead previously delivered.
If one of the conditions above exists, the lead may be returned by emailing the lead to leads@sima-net.comWITHIN 5 BUSINESS DAYS along with the description of the problem. Under SIMA's sole discretion, SIMA may credit the Buyer's account for the returnable lead.
5. Disclaimer
BUYER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED HEREUNDER "AS IS" WITH NO WARRANTY WHATSOEVER AND THAT ITS USE OF THE SERVICES IS AT ITS OWN RISK. NEITHER SIMA NOR ITS AFFILIATES, LICENSORS OR SUPPLIERS MAKE, AND BUYER DOES NOT RECEIVE, ANY WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. SIMA AND ITS AFFILIATES, LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NONINFRINGEMENT. SIMA IS NOT INVOLVED IN THE ACTUAL TRANSACTIONS BETWEEN BUYERS AND NAMES. AS A RESULT, SIMA HAS NO CONTROL OVER THE QUALITY, SAFETY OR LEGALITY OF NAMES OR THE TRUTH OR ACCURACY THEREOF. BECAUSE USER AUTHENTICATION ON THE INTERNET IS DIFFICULT, SIMA CANNOT AND DOES NOT CONFIRM THAT NAMES ARE WHO THEY CLAIM TO BE. BECAUSE SIMA DOES NOT AND CANNOT BE INVOLVED IN BUYER-TO-NAME OR NAME-TO-BUYER DEALINGS OR CONTROL THE BEHAVIOR OF NAMES, IN THE EVENT BUYER HAS A DISPUTE WITH ONE OR MORE NAMES, BUYER RELEASES SIMA (AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, BUYERS AND AFFILIATES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL, DIRECT AND INDIRECT) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. BUYER IS RESPONSIBLE FOR ITS RELATIONSHIP WITH NAMES AND FOR SEEKING ANY REMEDIES AND REDRESS DIRECTLY FROM SUCH NAME IN THE EVENT OF ANY DISPUTE.
6. Limitation of Liability
IN NO EVENT SHALL SIMA, ITS AFFILIATES, SHAREHOLDERS, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, BUYERS 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 BUYER AGREEMENT, THE SUBJECT MATTER HEREOF OR THE SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM INFORMATION PROVIDED BY, TO OR THROUGH SIMA, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, TORT (INCLUDING NEGLIGENCE), CONTRACT (INCLUDING FUNDAMENTAL BREACH) OR OTHERWISE. THE AGGREGATE LIABILITY OF SIMA, ITS AFFILIATES, SHAREHOLDERS, OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, BUYERS AND EMPLOYEES, FOR ANY OTHER DAMAGES ARISING FROM OR RELATING TO THIS BUYER AGREEMENT, THE SUBJECT MATTER HEREOF, OR THE SITE OR SERVICES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY SHALL NOT EXCEED THE AMOUNTS RECEIVED BY SIMA DIRECTLY FROM BUYER PURSUANT TO THIS BUYER AGREEMENT DURING THE CALENDAR MONTH DURING WHICH SUCH CLAIM(S) ACCRUED.
7. Indemnification
Buyer agrees to defend, indemnify and hold harmless SIMA, its parent, subsidiaries, affiliates, licensees, licensors and suppliers, and their shareholders, members, partners, directors, officers, buyers and employees (collectively, the "Indemnified Parties"), with respect to any claim, demand, cause of action, debt, liability and expense (including reasonable attorneys' fees, costs and expenses) arising from any dispute with a Name or any breach of this Buyer Agreement by Buyer, or in connection with Buyer's use or misuse of the Site or services hereunder. The Indemnified Parties reserve the right to approve Buyer's counsel to defend any such claims, which approval will not be unreasonably withheld, and to approve any settlement thereof. The Indemnified Parties also reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Buyer hereunder.
SIMA agrees to defend, indemnify and hold harmless buyer, its parent, subsidiaries, affiliates, licensees, licensors and suppliers, and their shareholders, members, partners, directors, officers, buyers and employees (collectively, the "Indemnified Parties"), with respect to any claim, demand, cause of action, debt, liability and expense (including reasonable attorneys' fees, costs and expenses) arising from any dispute with a Name or any breach of this Buyer Agreement by SIMA, or in connection with SIMA's use or misuse of the Site or services hereunder. The Indemnified Parties reserve the right to approve SIMA's counsel to defend any such claims, which approval will not be unreasonably withheld, and to approve any settlement thereof. The Indemnified Parties also reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by SIMA hereunder.
8. Assignment; No Third Party Beneficiary; Waiver; Independent Contractor
Buyer shall not have the right to assign, sublicense or transfer this Agreement or any of its rights or obligations hereunder to any third party and any such attempted assignment, sublicense or transfer is hereby null and void. This Agreement is not intended to be enforceable against SIMA by any party other than Buyer, and is expressly not intended to be enforceable by any third party. No waiver of any breach or condition of this Agreement by either party shall be deemed to be a waiver of any other or subsequent breach or condition. Nothing in this Agreement is to be construed as creating an employer-employee or principal-agent relationship between the parties.
9. Amendments
Without limitation of Section 10, this Agreement may be amended from time to time by SIMA providing Buyer with thirty (30) days prior written notice. Any use by Buyer of the services after the effective date of a notice of amendment(s) to this Agreement shall be deemed to constitute agreement by Buyer to the amended Agreement.
10. Entire Agreement; Severability
This Agreement represents the entire understanding and agreement of SIMA and Buyer related to the subject matter of this Agreement, and any other terms and/or representations related to the subject matter, whether oral or written, are not part of this Agreement and are not binding. Buyer agrees to be legally bound by this Agreement and any amendments to this Agreement made in accordance with its terms and conditions, including but not limited to amendments pursuant to Section 9 and this Section 10 as well as any amendments accepted by a signed writing or any conduct which consists of an intentional affirmative action indicating assent thereto, such as clicking on an "SUBMIT" button on an agreement form, or hypertext link or the sending of an affirmative e-mail response by Buyer. The signature on the Buyer Application represents and warrants that Buyer is duly authorized to bind Buyer to this Buyer Agreement. If any provision of this Agreement is determined to be unenforceable for any reason, then such provision shall be enforced to the maximum extent permitted by law, and the remaining portion of the provision (or entire provision if applicable) shall be severed from the Agreement, and the remaining portions of the Agreement shall remain in full force and effect.
11. Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin and the federal laws of the United States of America applicable therein. Each of the Parties assents to the jurisdiction of the courts of Waukesha County, Wisconsin, which shall be the exclusive jurisdiction to hear all actions, suits and proceedings arising in connection with this Agreement.
12. Counterparts
This Agreement may be signed in counterparts with each deemed an original, but both of which when taken together shall constitute one and the same instrument.