Smashel Digital Marketing Online Marketing Terms and Conditions


Date Last Modified: January 25, 2024


Smashel, Inc. dba Smashel Digital Marketing provides a range of marketing products and services for local businesses (the “Marketing Services”). As used herein, “Smashel, Inc. dba Smashel Digital Marketing” refers to the direct or indirect subsidiary thereof, or other related entity with which you signed the Order Form. Please carefully read these Online Marketing Services Terms and Conditions (“Marketing Services Terms” or “Terms”). A glossary of the defined Terms is here.


These Terms apply to Smashel, Inc. dba Smashel Digital Marketing Services offered to businesses located in the United States and Canada. The Smashel Digital Marketing website can be accessed from countries around the world and may contain references to services that are not available in your country. These references do not imply that we intend to provide such services in your country. If you access the Smashel Digital Marketing website or download any products from outside the United States or Canada, you do so on your own initiative and are responsible for compliance with local laws. The Marketing Services should not be used to collect customer data of customers located in the UK or EU.


By executing an Order (as defined below) for Marketing Services, or by engaging in any business activity or event with Smashel Digital Marketing, you signify that you have read, understood, and agree to be bound by the Terms, which incorporate the following:


  • the Smashel Digital Marketing Data Processing Agreement (“DPA”);
  • the quotation, insertion order, or advertising commitment that has been issued by Smashel Digital Marketing to you (the “Order”) which sets forth the Marketing Services being purchased by the client who signed the Order Form (“you” or “Client”);
  • the Smashel Digital Marketing Privacy Policy (the “Privacy Policy”) and Cookie Policy (“Cookie Policy”);
  • the Smashel Digital Marketing Security Policy (“Security Policy”) and list of Sub-Processors (“Sub-Processors”);
  • any additional guidelines and any future modification to any of the foregoing that may be issued by Smashel Digital Marketing from time to time.


The Terms, DPA, Order, Privacy Policy, Cookie Policy, Security Policy, and the documents and/or links referenced in such documents are collectively (the “Agreement”). 


These Terms also apply to any Marketing Services you may sign-up for without an Order Form, such as free trials or other limited-time offers.


Smashel Digital Marketing reserves the right to amend, modify, or restate these Terms (the “Amendments”) from time to time in its sole discretion. Smashel Digital Marketing will provide notification of the Amendments by updating the “Date Last Modified” date set forth above. You agree that you will regularly check the site to view current terms. You agree that your continued use of any of the Marketing Services after the posting of the Amendments constitutes your acceptance of this Agreement and the Amendments.


If you are accepting on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to this Agreement, (ii) you have read and understand this Agreement, and (iii) you agree, on behalf of the Client, to this Agreement.


THIS AGREEMENT INCLUDES THE DISPUTE RESOLUTION PROVISION IN SECTION 15, WHICH DESCRIBES HOW CERTAIN DISPUTES WILL BE RESOLVED WITH SMASHEL DIGITAL MARKETING, AND THAT NO CLASS ACTIONS MAY BE BROUGHT UNDER THIS AGREEMENT WITH SMASHEL DIGITAL MARKETING. IF YOU WANT TO OPT-OUT OF THIS DISPUTE RESOLUTION, SECTION 15 BELOW DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THESE TERMS ALSO REQUIRE ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES WITH SMASHEL DIGITAL MARKETING, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE WITH SMASHEL DIGITAL MARKETING.


1. Marketing Services.


The Marketing Services include, but are not limited to, the following products:



The Tracking Services (which also sets forth the terms for Custom Tracking) are applicable to all of the Marketing Services, so please review carefully.


You will be able to see the additional terms and conditions governing each of our Marketing Services by clicking the links above (the “Product Terms”).


2. Fees.


a. Identification of Fees. You agree to pay the amounts set forth in the Order Form (the “Fees”). The Fees are divided into product fees, service fees, and set-up fees if applicable. Product fees are the monthly recurring fees that you will be charged for the specific product you have purchased as shown on the Order Form. Service fees are for the delivery of any premium services that Smashel Digital Marketing may, from time to time, offer. Set-up fees are one-time fees for the set-up of campaigns or other services. Smashel Digital Marketing reserves the right to change any of the Fees at any time subject to the rest of this section.


b. Advanced Notice of Price Increases. You will receive 30 days' notice of any price increase which will take effect at the new renewal.


c. For Non-Media Products (for example, SEO, Website Hosting Fees, Chatbots, Listings Management, LeadsGenie, Social Media Marketing, and Custom Tracking) if you do not agree to the new price, you may cancel within the 30-day window.


d. For Media Products (for example, Search Marketing, Display, Targeted Email Marketing, Live Chat Platinum, and Social Ads) from time to time we may recommend a new budget increase which will take effect at the next renewal. If you do not agree to our recommendation, let us know within the 30-day window and we will keep your budget the same.


e. Cancellation Effective Date. Any product may be canceled effective at the completion of one full Cycle after Smashel Digital Marketing’s receipt of your cancellation request. Cancellation during the Initial Term may be subject to a Cancellation Fee outlined in Section 3 (c).


f. Promotional Credits. If Smashel Digital Marketing offers any special promotions that provide you with credits or other incentives in connection with purchasing Marketing Services (the “Promotional Credits”), and you cancel one or more of the Marketing Services prior to completion of the Initial Term (other than for cause, as set forth below), then in addition to any other cancellation penalties you may be subject to, you will be required to repay to Smashel Digital Marketing the full amount of the

Promotional Credit(s).


3. Payment Terms.


a. General. Once an Order Form has been accepted by Smashel Digital Marketing, you will be responsible for payment in full of all Fees, except as may otherwise be provided in Section 4(c) hereof. The Fees shown are not inclusive of sales, use, or similar taxes which may be applicable. If applicable, sales, use, and similar taxes shall be your sole responsibility and may be assessed on the invoice. Please note that the sales tax shown on an Order Form is only an estimate. The actual amount of sales tax will be determined at the time that payment is made. All payments are due in U.S. dollars.


b. Payment by Credit Card, ACH, or Check or Payment against Invoice. The manner of payment will be described in your Order Form. If you are paying in advance by credit card (the “Credit Card”) or ACH (electronic debit from your bank account), you authorize us to charge the Credit Card or bank account for all fees payable during the Term. Upon Smashel Digital Marketing’s prior approval under certain circumstances, you may pay by check. The Smashel Digital Marketing accounts are paid by invoice in arrears, payable seven (7) days from the date of the invoice. Upon cancellation, Smashel Digital Marketing may recover any Promotional Credits (as set forth above) and collect any Cancellation Fees (as defined below). In the case of payment through ACH, no amounts owing are considered paid until the electronic debit has been received by Smashel Digital Marketing’s bank.


c. Charging of Payment Methods on File: In addition to the payment methods specified in your Order Form, by engaging with Smashel Digital Marketing, you hereby grant permission to Smashel Digital Marketing to charge any payment method(s) you have on file with us for any payments owed. This includes, but is not limited to, credit cards, bank accounts associated with ACH payments, or any other payment methods you have previously used with us. This authorization is intended to facilitate the timely and efficient settlement of any due payments and to ensure uninterrupted service.


  • Automatic Payment for Outstanding Balances: You agree that in the event of any outstanding balances or unpaid invoices, Smashel Digital Marketing has the right to automatically charge these amounts to any payment method you have on file with us.
  • Notification of Charges: Smashel Digital Marketing will provide notification of any such charges either prior to or immediately following the transaction, as per our standard communication procedures.
  • Update of Payment Information: It is your responsibility to keep all payment information current and updated. In case of any changes to your payment methods, you agree to promptly update your information on file with Smashel Digital Marketing.



d. Paused or Termination for Non-Payment. You understand and acknowledge that your payment obligation is a contractual obligation, and your campaign or service may be paused or terminated if timely payment is not received.


4. Term/Termination.


a. Term. The Agreement shall commence upon execution of an Order Form and, after the Initial Term, will automatically renew for additional 30-day periods until cancelled in accordance with the terms of this Agreement. Free trials and other limited-time offers signed up for without an Order Form have limited terms and will automatically conclude unless the Marketing Service is purchased via an Order Form at the end of the trial period.


b. Cancellation. How to Cancel: Unless otherwise provided in the Product Terms, you may cancel any Marketing Service at any time and for any reason by contacting your service representative, calling 1-352-706-7020 or emailing info@smashel.com.


i. Smashel Digital Marketing’s Right to Cancel. Smashel Digital Marketing may cancel any Marketing Service at any time for any reason on written notice to you (email sufficient) upon the conclusion of a Cycle.


ii. Cancellation Payments.


If you have not completed the initial number of Cycles set forth on the Order Form (the “Initial Term”), you are responsible for payments until the completion of the Initial Term.


If you have completed the Initial Term, cancellation will be effective at the completion of one full Cycle after Smashel Digital Marketing’s receipt of your Cancellation Request (for example, if you request cancellation while you are in the middle of the 6th Cycle, the cancellation will be effective after completion (and payment) through and including the 7th Cycle).


c. Cancellation Fee for Credit Card, ACH, or Check Clients. Unless otherwise provided in the Product Terms, if you wish to cancel any Marketing Service immediately without completing the applicable term described above, you may do so, but you will have to pay a cancellation fee equal to 50% of any unpaid portion of such Marketing Service’s term (the “Cancellation Fee”).The following are two examples:


i. Search Marketing Campaign Cancellation: If you wish to cancel a Search Marketing campaign with an Initial Term of 12 Cycles at $2,000 per Cycle after 9 Cycles, you will be obligated to pay a $3,000 Cancellation Fee (which is 50% of the unpaid portion of the Initial Term).


ii. Targeted Display Campaign Cancellation: If you wish to cancel a Targeted Display campaign with an Initial Term of 12 Cycles at $2,000 per Cycle after 13 Cycles, you will be obligated to pay a $1,000 Cancellation Fee (which is 50% of the amount owing through the one Cycle notice period described above).


iii. Payment of Cancellation Fee: The Client Card or shall be permitted to cause payment to be made through ACH for the Cancellation Fee or Smashel Digital Marketing may invoice you for the Cancellation Fee, which invoice must be paid within seven (7) business days after the invoice date. No cancellation of an Order Form under this section shall take effect until the Cancellation Fee has been paid, meaning that Smashel Digital Marketing may continue the campaign, and you shall continue to be obligated to pay for the campaign in accordance with the terms of this Agreement. You acknowledge that the Cancellation Fee is not a penalty, but rather is a reasonable amount of liquidated damages to compensate Smashel Digital Marketing for your early cancellation of Marketing Services.


d. Cancellation Revocation. You may, upon written notice to Smashel Digital Marketing (email is acceptable), revoke such termination within 30 days after you have made a Cancellation Request, in which case the Order Form will be reinstated and all applicable campaigns, if they had been stopped, will be re-initiated upon payment in full of all amounts owed. If the Cancellation Fee has already been paid, it shall be applied to the amount owing on the Order Form.


e. Termination for Cause. Either you or Smashel Digital Marketing may terminate the Agreement (which will terminate all current Order Forms) on 30 days prior written notice (the “Notice Period”) if the other party is in material breach of its obligations hereunder and such breach has not been materially cured by the conclusion of the Notice Period. For the avoidance of doubt, Smashel Digital Marketing makes no guarantees with respect to the lead performance of any campaign or any other service and therefore such performance shall not be a basis for termination pursuant to this Section. You also understand that specific results are unpredictable, especially for new Marketing Services, and are not indicative of prospects, long-term performance, or Smashel Digital Marketing’s performance in general.


f. Campaign Pauses. Smashel Digital Marketing may pause a Media Product campaign at any time for operational reasons. You may also request a pause in a campaign; however, it will be in Smashel Digital Marketing’s sole discretion to determine if a campaign pause is appropriate. If you request to pause your campaign and the campaign is paused for more than 30 days, you will have to pay an additional Campaign set-up Fee to restart the campaign. Smashel Digital Marketing may charge the Client Card or shall be permitted to cause payment to be made through ACH for the Cancellation Fee or Smashel Digital Marketing may invoice you for such additional set-up Fee, which invoice must be paid within seven (7) business days after the invoice date.


g. No Refunds. You understand and agree that you will not be entitled to any refunds of amounts already paid to Smashel Digital Marketing. All sales are final. 


h. Adjustments and Credits. You understand and agree that you will not be entitled to any refunds of amounts for approved Marketing Services that have been delivered. Adjustments may be made for errors in order processing or if Smashel Digital Marketing terminates, in which case you shall only be entitled to a refund for the unspent balance of the then applicable Cycle Payment (as defined in the applicable Product Terms) or equivalent, which shall be your sole remedy.


i. Collection of Amounts Owed. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). You agree to pay all costs of collection (including attorneys’ fees and costs and all other legal and collection expenses) incurred by Smashel Digital Marketing in connection with its enforcement of its rights under the Agreement.


j. Effect of Termination; Survival. You understand and acknowledge that due to the nature of the Internet, certain information regarding you that was posted on the Internet as part of the Marketing Services may continue to be available on the Internet following termination of Marketing Services and/or the Agreement. All provisions of the Agreement that by their sense or nature should survive termination of the Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall survive. Without limiting the generality of the foregoing, in the event of any termination, you shall remain liable for any amounts due to Smashel Digital Marketing as of the effective date of termination.


5. LeadsGenie - the Smashel Digital Marketing Platform.


a. Your Data. As part of the campaign initiation process and from time to time during the campaign, you will provide certain information to Smashel Digital Marketing, which Smashel Digital Marketing may input into its proprietary platform (the “Platform”). Accordingly, you hereby permit Smashel Digital Marketing to input your contact information, credit card or ACH information (if applicable), and campaign information into the Platform. Smashel Digital Marketing will only use such information in connection with the fulfillment of the Marketing Services, as otherwise permitted by the Agreement and as may be legally necessary. In addition, you agree that Smashel Digital Marketing may, from time to time, use your data to send you emails regarding Platform updates, campaign updates, payment reminders, and marketing opportunities relating to Smashel Digital Marketing and its commercial partners. You agree to receive such emails. You may also provide Smashel Digital Marketing with consent to receive text/SMS messages with such information and may opt out at any time.


b. License to Access LeadsGenie. LeadsGenie is offered as a privilege to Clients in good standing. Until you cancel all Marketing Services, you will be granted a revocable, non-transferable, non-sublicensable, non-exclusive, limited license to access LeadsGenie, Smashel Digital Marketing’s online reporting and marketing services platform, including, if applicable, Smashel Digital Marketing’s lead management software system. Your access shall be password protected and you agree that you may not share your password with third parties or otherwise provide access to LeadsGenie to third parties. If the security of your username(s) or password(s) is compromised in any way, or if you or one of your agents suspects that it may be, you shall immediately contact Smashel Digital Marketing. Smashel Digital Marketing is not responsible for any loss or damage suffered by the compromise of any password. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in LeadsGenie, the Platform, software, data, applications, methods of doing business or any elements thereof, or any content provided therein. You may only access LeadsGenie via a Web browser, a mobile application or in a manner otherwise approved by Smashel Digital Marketing. You will not attempt in any way to reverse engineer, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective LeadsGenie. Smashel Digital Marketing may terminate the foregoing license, at any time and for any reason.


6. Privacy Considerations.


You shall, at all times, post a privacy policy on your native web site (the “Existing Site”) and comply with such privacy policy. The privacy policy must comply with all applicable laws. You shall ensure that your privacy policy does not contain provisions that are inconsistent with the nature of the services being provided by Smashel Digital Marketing. Smashel Digital Marketing may, but is under no obligation to, insert or otherwise make visible from the Proxy Site (as defined in the Tracking Terms), such notifications as it may deem appropriate. You understand and acknowledge that your failure to maintain a privacy policy that complies with the foregoing requirements may (a) result in your campaign not being run or being suspended and (b) expose you and Smashel Digital Marketing to liability which you shall fully indemnify.


7. Intellectual Property Matters.


a. License to Smashel Digital Marketing. You hereby grant to Smashel Digital Marketing and the online properties on which Client Content is served by the Marketing Services (the “Publishers”) a non-exclusive, royalty-free, worldwide license to use, copy, modify (as permitted herein), publicly perform, display, broadcast, and transmit during the term of this Agreement (i) any text, images, logos, trademarks, service marks, promotional materials, product or service information, comments, reviews, photos, audio and video clips, and other information (“Client Content”) you provide in connection with any Marketing Service and (ii) the Existing Site, to the extent necessary for Smashel Digital Marketing to perform the Marketing Services, including to perform automated scans of text data and publicly available content on the Existing Site in order to improve the performance of your Marketing Services and/or recommend other Marketing Services. Except as set forth in any Product Terms and this Agreement, title to and ownership of all intellectual property rights of all Client Content shall remain with you or your third-party licensors. You agree that Smashel Digital Marketing may, during the term of this Agreement and thereafter, include your name (including any trade name, trademark, service mark, and logo) on Smashel Digital Marketing’s client list, and in its marketing materials, sales presentations, and any online directories that Smashel Digital Marketing may, from time to time, publish.


b. Smashel Digital Marketing Creative Services. Except as may be otherwise provided in any of the Product Terms, if you request that Smashel Digital Marketing provide any creative services, you will remain fully responsible for any content you provide to Smashel Digital Marketing. With respect to any content created by Smashel Digital Marketing, as between you and Smashel Digital Marketing, Smashel Digital Marketing shall retain ownership of the design elements of such content, excluding any of your trade names, trademarks, service marks, or logos or other proprietary elements that may be included within such content, but that predate the creation of the content.


8. Your Representations, Warranties, and Covenants.


You represent and warrant that you have all necessary rights and authority to enter into the relationship with Smashel Digital Marketing contemplated by the Agreement. You represent, warrant, and covenant that the Existing Site, any content linked to the Existing Site, and any content or materials that you provide to Smashel Digital Marketing, do not and will not: (a) infringe on any third party’s copyright, patent, trademark, trade secret, moral right, or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance, or regulation, including, without limitation, laws and regulations governing any collection or use of personal information on the Existing Site and obtaining required consents for cookie use, export control, false or misleading advertising, or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses, Trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines. You further represent, warrant, and covenant that the product or service that is being (or will be) promoted through any campaign is (i) lawful and (ii) not the subject of any ongoing investigation by any local, state, or federal regulatory or quasi-regulatory authorities.


9. Indemnification.


a. You will indemnify, defend (with counsel reasonably acceptable to Smashel Digital Marketing) and hold harmless Smashel Digital Marketing, the Publishers, their subsidiaries, affiliates, and parent companies, and each of their respective directors, officers, agents, and employees, and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys’ fees and expenses) incurred in connection with any claim, action, or proceeding arising from or relating to: (i) any breach by you of any representation, warranty, covenant, or other obligation contained in these Marketing Services Terms or in any of the Product Terms; (ii) the violation of any rights of any third party, including intellectual property, privacy, publicity, or other proprietary rights by you or anyone using your account; (iii) the sale, license, supply, or provision of your goods or services; or (iv) any other act, omission, or misrepresentation by you. Smashel Digital Marketing reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. If Smashel Digital Marketing does assume the defense of such a matter, you will reasonably cooperate with Smashel Digital Marketing in such defense. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to, or any admission of wrongdoing by, any indemnified person or entity, without Smashel Digital Marketing’s prior written consent.


b. Smashel Digital Marketing's Indemnification Obligations. Smashel Digital Marketing will indemnify, defend, and hold you harmless from and against any loss, damage, cost, liability, or expense (including reasonable legal fees) arising out of any claim that any Smashel Digital Marketing technology used in connection with its provision of the Marketing Services infringes the copyright, patent, trade secret, or other proprietary rights of any third party, provided that prompt notice is given to Smashel

Digital Marketing and that you will reasonably cooperate with Smashel Digital Marketing in such defense.


10. Agency.


In the event you are purchasing advertising on behalf of another company, you represent and warrant that you have been authorized by each such company to act as its agent in all respects relating to the Agreement with Smashel Digital Marketing, including, without limitation, the making of any elections or giving of any consents. Without limiting the generality of the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Marketing Services Terms with Smashel Digital Marketing. You and each such company shall be jointly and severally liable for the fulfillment of obligations under this Agreement with Smashel Digital Marketing, including all payment obligations.


11. Confidentiality.


Except as may be required by applicable law, you shall not disclose the contents of the Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without Smashel Digital Marketing’s prior written consent. Except as otherwise expressly herein permitted, no party may issue a press release concerning the existence or terms of the Agreement without the prior written consent of the other party. In addition, except as may be required by applicable law, you may not disclose any Confidential Information regarding Smashel Digital Marketing. “Confidential Information” means information about Smashel Digital Marketing’s (or its suppliers’) business, products, technologies (including the Platform or LeadsGenie), strategies, financial information, operations, or activities that is proprietary and confidential, including without limitation all business, financial, technical, and other information disclosed by Smashel Digital Marketing. Confidential Information will not include information that you can establish is in or enters the public domain without breach of these confidentiality obligations.


12. DISCLAIMER OF WARRANTIES.


SMASHEL DIGITAL MARKETING PROVIDES ALL MARKETING SERVICES PERFORMED HEREUNDER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE MARKETING SERVICES ARE INTERRUPTED OR DELAYED, SMASHEL DIGITAL MARKETING’S SOLE OBLIGATION WILL BE TO RESTORE SUCH SERVICES AS SOON AS PRACTICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMASHEL DIGITAL MARKETING DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SMASHEL DIGITAL MARKETING WILL HAVE NO LIABILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; (ii) CLAIMS RELATING TO INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY (OTHER THAN BY THE PLATFORM) OR DEFAMATION; (iii) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF ANY OF THE MARKETING SERVICES; (iv) UNAUTHORIZED ACCESS TO OR USE OF SMASHEL DIGITAL MARKETING’S SERVERS OR SYSTEMS OR LOSS OF ANY PERSONAL OR FINANCIAL INFORMATION; (v) INTERRUPTION OF TRANSMISSION TO OR FROM THE MARKETING SERVICES; (vi) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE MARKETING SERVICES BY ANY THIRD PARTY; (vii) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE MARKETING SERVICES; OR (viii) MATTERS BEYOND SMASHEL DIGITAL MARKETING’S REASONABLE CONTROL. SMASHEL DIGITAL MARKETING DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE OFFERINGS OR ANY LINKED WEB SITE.


13. LIMITATIONS OF LIABILITY.


a. No Consequential Damages. To the maximum extent permitted by applicable law, neither party shall be liable for any special, indirect, incidental, punitive, or consequential damages (including, without limitation, for breach of contract or warranty, negligence or strict liability), or for interrupted communications, loss of use, lost business, lost data, or lost profits (even if such party was advised of the possibility of any of the foregoing), arising out of or in connection with this Agreement. The foregoing exclusion of liability will not apply to (i) either party’s indemnification obligations, including any amounts payable in connection therewith; (ii) to your confidentiality obligations; and/or (iii) either party’s willful misconduct.


b. Limitation on Damages. To the maximum extent permitted by applicable law, under no circumstances shall Smashel Digital Marketing’s cumulative, aggregate liability to you or any third party exceed the amounts received by Smashel Digital Marketing from you during the 12-month period immediately prior to the incident giving rise to such liability. In lieu of refund, Smashel Digital Marketing shall be permitted, in its sole discretion, to provide “make-good” marketing services, provided such “make-good” marketing services are provided within a reasonable period of time after the liability has accrued.


Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent Smashel Digital Marketing may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Smashel Digital Marketing’s liability will be the minimum permitted under such law. Notwithstanding anything to the contrary contained in any other order, agreement, or addendum between the parties or their affiliates, the limitations of liability in this Section 13 apply to all such orders, agreements, and addendums.


c. Acknowledgement. Each party acknowledges that the other party has entered into the Order Form in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.


14. Third Party Beneficiaries.


You understand and acknowledge that the Publishers are intended third-party beneficiaries of Sections 7 (Intellectual Property Matters), 8 (Your Representations, Warranties, and Covenants), 9 (Indemnification), and 13 (Limitations of Liability) in the context of the services provided by Smashel Digital Marketing.


15. Dispute Resolution.


a. Informal Dispute Resolution. Except for any controversy or claim relating to an Intellectual Property Right (as defined below in Section 15(c)), the parties agree that with respect to any matters, disputes, or claims between Client and Smashel Digital Marketing arising from or related to this Agreement or the parties’ relationship, Smashel Digital Marketing and Client shall negotiate in good faith to informally resolve the problem or dispute. If the problem or dispute is not resolved satisfactorily within 60 days after Smashel Digital Marketing or Client receives notice in accordance with Section 16(d) (if Smashel Digital Marketing), or to the address identified on the Order Form (if Client), either party can submit the dispute to binding arbitration in accordance with this arbitration provision.


b. Arbitration. Except for any controversy or claim (1) relating to the ownership by either party of any Intellectual Property Rights (as defined below in Section 15(c)), or (2) properly filed and pursued in small claims court on an individual basis, any claim, dispute, or controversy between the parties arising from or relating to this Agreement or the relationships which result from this Agreement that remain unresolved after the parties attempt to informally resolve such claim, dispute, or controversy shall be resolved by binding arbitration brought on an individual basis as a “Common Claim” before FORUM f/k/a the National Arbitration Forum (NAF) pursuant to the Code of Procedure for Resolving Business Disputes then in effect (or such other arbitration provider as is mutually-agreeable to the parties) in a manner consistent with the terms in this Agreement. Parties shall submit all available documents that support their claims, counterclaims, or defenses at the time of submission of the initial claim or response thereto. Additional discovery will be permitted only upon a showing of good cause and subject to the arbitrator’s approval. The arbitration shall take place in the state and county in which Client is located or in Gainesville, Florida, in accordance with the initiating party’s (“Claimant’s”) preference. The Client and Smashel Digital Marketing shall each pay their own arbitration and hearing fees, costs, and expenses, including but not limited to fees, costs, and expenses for attorneys, experts, discovery, and witnesses (as applicable). The arbitration shall be conducted by a single arbitrator. The arbitration may be held by telephone, remote video, or by written submissions if Client and Smashel Digital Marketing jointly elect to do so. The arbitrator shall issue a written award. Any award of the arbitrator may be entered as a judgment in any court having jurisdiction. Information may be obtained at www.adrforum.com and claims may be filed electronically at file@adrforum.com. After an arbitration is commenced, if the Claimant makes a written offer of settlement that is rejected by the other party (“Respondent”), and Claimant is the prevailing party in arbitration and recovers an amount equal to or greater than Claimant’s offer of settlement, Claimant shall recover his, her, or its reasonable attorneys’ fees and expenses incurred in investigating, preparing for, and pursuing a claim in arbitration up to $25,000. After an arbitration is commenced, if the Respondent makes a written offer of settlement that is rejected by the Claimant, and Claimant either does not prevail in arbitration or does not recover more in the arbitration than Respondent’s offer of settlement (exclusive of attorneys’ fees or costs awarded to Claimant by the arbitrator), then Respondent shall recover his, her, or its reasonable attorneys’ fees and expenses incurred in investigating, preparing for, and defending the claim in arbitration up to $25,000. This agreement to arbitrate shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16 including that the arbitrator shall resolve all issues regarding statutes of limitations and whether claims were timely submitted.


c. Exceptions. This agreement to arbitrate does not apply to any of the following: (1) any claim, action, or proceeding arising out of or relating to a patent, copyright, trademark, or trade secret right of Client, Smashel Digital Marketing, or any affected third party (collectively, “Intellectual Property Rights”); or (2) claims filed on an individual basis in small claims court properly within that court’s jurisdiction and proceeding on an individual (non-class) basis. In addition, prior to the appointment of an arbitrator, either party may seek provisional remedies, including, but not limited to, temporary restraining orders and preliminary injunctions in any court having jurisdiction. After the appointment of an arbitrator, only the arbitrator may grant provisional remedies as the arbitrator, in his or her sole discretion, deems necessary and appropriate. The parties expressly agree that arbitration shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class-action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between Client and Smashel Digital Marketing. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provision in this Agreement, if any portion of this “Exceptions” provision is deemed invalid or unenforceable, then the entire Dispute Resolution Provision (other than this sentence) shall not apply. If a party improperly brings a claim, action, or proceeding in a court of law that is properly arbitrable in accordance with Section 15(b), or brings a claim, action, or proceeding in arbitration that is not properly arbitrable based on the exceptions identified in this Section 15(c), the other party may seek relief in a court located in the jurisdiction in which the underlying action was commenced and, if prevailing, shall be entitled to his, her, or its reasonable attorneys’ fees and costs.


d. Amendment. Smashel Digital Marketing reserves the right to amend this arbitration provision at any time and will notify Client of such amendments. Client’s continued use of the services after receiving notice of any changes to this Section 15 is affirmation of Client’s consent to such changes.


e. Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS-WIDE LEGAL PROCEEDING AS TO ALL CLAIMS THAT ARE SUBJECT TO THIS ARBITRATION PROVISION WITH SMASHEL DIGITAL MARKETING. CLIENT MAY BRING A CLAIM ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT IN ANY REPRESENTATIVE CAPACITY. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST IN ARBITRATION.


16. Miscellaneous.


a. Governing Law. For Clients located in the US, the Agreement will be governed and construed in accordance with the laws of the State of Florida without giving effect to conflict of laws principles. 


b. Timing of Claims. You agree that, regardless of any statute or law to the contrary, the dispute resolution process identified in Section 15 applicable to any claim, dispute, or controversy arising out of or related to the Agreement with Smashel Digital Marketing must be commenced within one month after such claim or cause of action arose or be forever barred; provided that this section shall not in any way limit the time in which claims for infringement or misappropriation of Intellectual Property Rights may be brought.


c. Entire Agreement. The Agreement (which includes the Order Form, all applicable Product Terms, and any payment authorization forms) sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof, in relation to Smashel Digital Marketing.


d. Notices. Any written notices to Smashel Digital Marketing required under the Agreement shall be provided by registered mail with proof of delivery to Smashel Digital Marketing’s then-current corporate headquarters address (as shown on your Order Form), Attn: Office of the Chief Legal Officer, and by email to info@smashel.com. Notices shall be deemed delivered upon receipt.


e. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.


f. Assignment. You may not assign any Order Form or the Agreement without the prior written consent of Smashel Digital Marketing. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors, and joint administrators and permitted assigns.


g. Independent Contractors. The parties to the Agreement are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by the Agreement.


h. Third-Party Services. Some of the Marketing Services may incorporate third-party products and services, and Smashel Digital Marketing may do so without your consent, provided that Smashel Digital Marketing remains primarily liable for the performance of its obligations to you.


i. Referrals. You acknowledge that Smashel Digital Marketing may provide incentives to third parties to introduce potential clients to Smashel Digital Marketing or to direct Smashel Digital Marketing to potential clients.


j. Force Majeure. Neither party shall have any liability for any failure or delay (other than with respect to payment obligations) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or inventory shortage, unavailability of currency, transportation interruption of any kind, work slowdown, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.


k. International Sale of Goods; Exports. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. Smashel Digital Marketing software is controlled by U.S. Export Regulations, and it may not be exported to or used by embargoed countries or individuals.

Share by: