Last Updated: December 11, 2022
This Agreement is incorporated by reference into Client’s Practice Growth System Membership Agreement (“Membership Agreement”) and/or SmartBox Enrollment Agreement (“Enrollment Agreement”). SmartBox and Client agree to the following terms and conditions governing the marketing and other services being performed/provided by SmartBox on Client’s behalf.
1. SmartBox’s Service to Client:
(A) Overview: In consideration of weekly payments made by Client to SmartBox, SmartBox shall provide marketing services (“Service”) to Client as described in their Membership Agreement or Enrollment Agreement. While many services begin immediately, some services such as Paid Media Advertising (if applicable), SmartBox’s Hosting of Client’s Previous Website (if applicable) and Fresh and Unique Content (if applicable) may or may not begin until the launch of Client’s SmartBox-designed website, with the start date of those services based upon specific circumstances in each case according to each Client’s project plan.
(B) Hosting of Previous Website: SmartBox may offer to host a “static” version of Client’s existing website in order to maintain Client’s internet presence while Client’s SmartBox-designed website is developed (“Hosting of Client’s Current Website”). Client agrees to release and indemnify SmartBox against any claims that may arise from SmartBox’s Hosting of Client’s Current Website, including but not limited to any potential claims of trademark violation, copyright infringement, unauthorized use, or noncompliance with any applicable statutes, rules, or regulations. Client assumes all risk related to SmartBox’s Hosting of Client’s Previous Website (meaning Client’s Existing Website that predates their SmartBox services).
(C) Tracking Number: SmartBox’s services require the use of a tracking phone number in order to determine the effectiveness of Client’s marketing services and make any adjustments to service as needed. Client understands, acknowledges, and agrees that all of SmartBox’s services will use tracking phone numbers for the duration of the Initial Commitment and during any Renewal Terms. Client further agrees that all such tracking phone numbers are the sole property of SmartBox unless otherwise agreed by both parties, in writing.
(D) Disclosures About Service: Client agrees that SmartBox’s Services are subject to change based on market conditions, including changes to Google or other search engines’ recommended strategies, SmartBox marketing strategy, or overhead expenses. In the event that marketing services are changed, SmartBox will provide Client with services of equal or greater market value (as determined solely by SmartBox) to their previous marketing services. If SmartBox offers any type of market exclusivity to Client, SmartBox shall solely determine the scope of the exclusivity based upon market share, market size, market demographics, and the operation and/or specialties of Client’s dental practice, among other factors. SmartBox may also build a variable management fee into any budget listed for pay-per-click advertising in their Membership Agreement or Enrollment Agreement.
(E) Cooperation from Client: CLIENT UNDERSTANDS THAT SMARTBOX’S SERVICE REQUIRES COOPERATION AND MINOR COLLABORATION FROM THE CLIENT. AS SUCH, CLIENT SHALL REASONABLY FOLLOW THE TIME FRAMES AND GUIDELINES GIVEN TO THEM BY SMARTBOX WHEN POSSIBLE. IF CLIENT DEVIATES AND DOES NOT RESPOND IN A REASONABLE TIMEFRAME, SMARTBOX SHALL NOT BE RESPONSIBLE FOR ANY RESULTING INABILITY TO DELIVER ANY ASPECTS OF CLIENT’S SERVICE AND/OR ANY DELAYS THAT RESULT TO CLIENT’S SERVICE.
(F) Abuse of Services: Neither SmartBox nor Client shall engage in any illegal or malicious use of Service, any promotion of illicit activities, any unsolicited bulk electronic mailings, or other abuse of these services.2. Internet Service Guidelines:
(A) Bandwidth: SmartBox shall provide dedicated or shared server computers with an internet address for storage and access of marketing materials and the Client’s website including reasonable bandwidth and storage as determined solely by SmartBox. If Client requires additional bandwidth or storage, SmartBox shall negotiate in good faith to accommodate Client’s needs.
(B) Website Accessibility: SmartBox shall provide hosting services for the website that meet commercially reasonable standards for, among other matters, packet loss, accessibility, latency, availability, and throughout, but cannot guarantee the same. SmartBox shall take commercially reasonable steps to prevent unauthorized access to the Client’s website and any confidential information stored on SmartBox’s server computers, but cannot guarantee the same. SmartBox shall employ best efforts in providing advance notice to Client of scheduled server computer/network outages, but cannot guarantee the same. SmartBox shall back up Client’s website in a commercially reasonable manner but is not responsible for lost content and marketing materials. Website backups will be stored by SmartBox for no longer than fourteen (14) days. Backups are intended for disaster recovery, not the restoration of individual files.
(C) Hardware and Software: SmartBox provides no equipment, software, or communication connections to Client. SmartBox makes no representations, warranties, or assurances that the Client’s equipment, software, and communication connections will be compatible with SmartBox’s hardware and service.
(D) Modifications to Website by Client: Client acknowledges that SmartBox offers no means for Client to directly modify, add, delete, or otherwise change content stored on SmartBox’s servers. Due to HIPAA regulations, SmartBox cannot offer or grant backend website access to Client or third-parties.
(E) Downtime and Losses: SmartBox is not responsible for any costs or losses associated with downtime, changes, or any other loss that may occur in the operation of the Client’s website.
(F) E911 Service: The Federal Communications Commission does not require that SmartBox provide E911 Service to Clients.
(H) Search Rankings: Online advertising runs the risk of algorithmic changes to search engines; SmartBox offers no guarantee of any specific placement in any search engine.
3. Payment Processing:
(A) Payments to SmartBox: In consideration of Service performed by SmartBox, Client shall either prepay for their Service in advance, or provide a weekly or monthly payment to SmartBox for the duration of their Membership Agreement or Enrollment Agreement. SmartBox reserves the right to increase service pricing on any Renewal Terms by providing thirty (30) days written notice to Client.
(B) Payment Method: Client shall provide SmartBox with direct debit (ACH) information or credit card information in order to facilitate SmartBox processing automatic payments to Client’s bank account or credit card. Client authorizes SmartBox to process service payments to any payment method the Client puts on file with SmartBox. Client agrees to notify SmartBox of any change to the ACH or bank account information. SmartBox shall not be responsible for any charges made by Client’s bank to Client’s financial accounts for exceeding credit limits, insufficient funds, or other reasons. Returned checks and/or chargebacks or payments will incur a fee of $100 per occurrence.
(C) Payment Disputes: Client must dispute any charges for the Service in a mailed writing within thirty (30) days of the date of the charge by SmartBox or Client waives any objection and further recourse.
(D) Refunds: There are no refunds on SmartBox’s Services, unless specific written terms associated with a product or service are previously agreed otherwise in writing. If the Client elects to prepay for their Service and elects/forces Client Termination of Agreement, SmartBox shall not issue any monetary refunds to the Client but, for a Client Termination of Agreement during a Renewal Term, will provide credit on the Client’s account that can be used for other SmartBox products or services for any charges for the period after the required ninety (90) day notice period. Except for the event in which SmartBox accidentally charges Client for service when they should not, SmartBox shall have no obligation to issue any refund to Client.
4. Ownership of Marketing Materials:
(A) Previously Produced Materials: Client grants to SmartBox a non-exclusive, worldwide license to use any previously produced marketing materials that Client has right to grant as part of Client’s SmartBox Service.
(B) Marketing Systems: Client acknowledges that any websites and other marketing systems (such as auto-responders) will be built upon systems and platforms that are proprietary/the intellectual property of SmartBox. Marketing systems including but not limited to PracticeHQ and/or Call Tracking system, email autoresponders, and other systems/accounts are the exclusive intellectual property of SmartBox and are non-transferable, non-licensable, and only available to active SmartBox clients. Upon cancellation, all proprietary developments and systems remain the sole property of Smartbox.
(C) Tracking Phone Numbers: Any telephone number provided by SmartBox (“Number(s)”) to the Client is leased and not sold; all Numbers are non-transferable. SmartBox reserves the right to change, cancel, or move the Numbers at its sole discretion.
5. Responsibility for Legal Compliance, Indemnification, and Ambiguities:
(A) Compliance with Laws: Client agrees that they are solely responsible for complying with such laws, taxes, and tariffs, related to or affecting Client’s website, and will hold harmless, indemnify, and defend SmartBox and/or its owners, employees, vendors, and the like from any claim, suit, penalty, tax, liability, etc. arising from Client’s use of SmartBox’s Service including all attorney’s fees and costs. Electronic commerce on Client’s site is not the responsibility of SmartBox.
(B) Advertising Regulations: If Client provides information on the applicable federal/state/international advertising regulations, SmartBox shall use reasonable efforts to ensure advertising material is in compliance. However, Client always assumes all risk for using the Service and releases SmartBox from any liability arising from using marketing materials produced by SmartBox.
(C) Indemnity: Client shall defend SmartBox, its owners, employees, agents, vendors, and the like against any third-party claim, action, suit, or proceeding arising as a result of Client’s use of SmartBox’s hardware or services and indemnify SmartBox, for all losses, damages, and expenses incurred by SmartBox, as a result of any judgment entered against SmartBox, in any such claim, action, suit, or proceeding.
(D) Ambiguities: The parties agree that any ambiguities in this Acceptable Use Policy, a Membership Agreement, or an Enrollment Agreement will not automatically be construed against the drafting party.
6. Delays in Service: SmartBox shall not be liable for any delay or decline in performance directly or indirectly caused by or resulting from acts of God, epidemics or pandemics, war, government intervention, labor difficulties, equipment failure, late delivery by suppliers, or other difficulties as may occur in spite of SmartBox’s best efforts.
7. Breach of Membership Agreement, Enrollment Agreement, or Acceptable Use Policy by Client
(A) Overview: SMARTBOX DOES NOT ANTICIPATE THAT CLIENT WILL VIOLATE ANY ASPECT OF THIS AGREEMENT, INCLUDING A FAILURE TO PAY FOR SERVICE OR MAKE A LATE PAYMENT FOR THE SERVICE. FEES, CHARGES, AND ASSESSMENTS MAY BE ASSESSED AS LIQUIDATED DAMAGES INTENDED TO BE A REASONABLE ADVANCE ESTIMATE OF SMARTBOX’S COSTS RESULTING FROM LATE PAYMENTS, NON PAYMENTS, AND OTHER VIOLATIONS OF THIS AGREEMENT. THESE COSTS WILL BE DIFFICULT FOR SMARTBOX TO CALCULATE OR PREDICT WHEN SETTING SUCH FEES, CHARGES, AND ASSESSMENTS, BECAUSE SMARTBOX CANNOT KNOW IN ADVANCE: (A) IF CLIENT WILL PAY FOR SERVICE ON A TIMELY BASIS, IF EVER; (B) IF CLIENT MAKES A LATE PAYMENT, WHEN CLIENT WILL ACTUALLY PAY; OR (C) WHAT COSTS SMARTBOX WILL INCUR BECAUSE OF CLIENT’S POTENTIAL LATE PAYMENT, NONPAYMENT, OR OTHER CONTRACT BREACH. BOTH PARTIES AGREE THAT ANY SUCH LIQUIDATED DAMAGES FEES ARE NOT A PENALTY. CLIENT AGREES THAT SMARTBOX WOULD INCUR SUBSTANTIAL ECONOMIC DAMAGES IF CLIENT WERE TO VIOLATE THE AGREEMENT AND THAT LIQUIDATED DAMAGES REPRESENTS A FAIR, REASONABLE, AND APPROPRIATE ESTIMATE OF THE ACTUAL DAMAGES SUFFERED BY SMARTBOX.
(B) Schedule of Liquidated Damages for Late Payments, Declined Payments, or Payment Disputes: CLIENT SHALL BE LIABLE FOR THE FOLLOWING SCHEDULE OF LIQUIDATED DAMAGES: SERVICE SUSPENSION, TERMINATION, REINSTATEMENT, CHARGEBACK OR OTHER PAYMENT DISPUTE FEE, DECLINED PAYMENT FEE, AND/OR TRANSFER FEE: $250.00 PER HOUR OF SERVICE REQUIRED BY SMARTBOX TO RESOLVE THE MATTER. LATE PAYMENTS: CLIENT AGREES TO PAY LIQUIDATED DAMAGES EQUAL TO TWO PERCENT (2%) OF THE ORIGINAL CHARGE FOR ALL PAYMENTS MADE MORE THAN SEVEN (7) DAYS PAST THEIR CONTRACTUAL DUE DATE.