Terms and Conditions
Date: September 21, 2026
Version: 1.2.1
Welcome to Smirk Health!
These Terms and Conditions ("Terms") govern your ("you" or "your") access to and use of the technology platform provided by Smirk Health, Inc. ("Smirk," "we," "us," or "our"), including our website located at www.smirkhealth.com (the "Site"), our mobile and web applications, our member portal (collectively, the "Platform"), and the services contained or offered through the Platform, including certain insurance producer services provided by Smirk Health Agency, LLC ("Smirk Agency") (all collectively the "Services").
1. THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION, A CLASS ACTION WAIVER AND LIMITATIONS OF LIABILITY. ALL DISPUTES BETWEEN YOU AND SMIRK OR SMIRK AGENCY WILL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS OR CLASS ACTIONS. THESE TERMS ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
2. SMIRK HEALTH AGENCY, LLC. All Insurance Products on the Platform are offered and sold by Smirk Agency, which is a licensed insurance producer, and underwritten by a third-party insurance company which is fully licensed in the state where each policy is issued. Your coverage, benefits, exclusions, and limitations are governed by your policy documents, not by these Terms.
3. THIS IS A SUPPLEMENT TO HEALTH INSURANCE AND IS NOT A SUBSTITUTE FOR MAJOR MEDICAL COVERAGE. LACK OF MAJOR MEDICAL COVERAGE (OR OTHER MINIMUM ESSENTIAL COVERAGE) MAY RESULT IN AN ADDITIONAL PAYMENT WITH YOUR TAXES. See Section 6.
4. SOME FEATURES ARE SERVICES, NOT INSURANCE COVERAGE. Certain features or benefits such as Telehealth access, care navigation, and provider directory tools made available to members are not Insurance Products.
5. THE SERVICES INCLUDE ARTIFICIAL INTELLIGENCE FEATURES. Our Services include AI-powered concierge and AI Health Information Tools. These tools are not a doctor, do not practice medicine, and do not provide medical advice. They are not for emergencies.
1. Acceptance of Terms and Precedence.
By accessing or using the Platform or any of the Services, you agree to be bound by these Terms, Smirk's Privacy Policy and other Supplemental Terms that apply to you. If you do not agree to these Terms, do not use the Platform or Services. In case of any conflict between these Terms and the Privacy Policy or any Supplemental Terms, the Privacy Policy and Supplemental Terms prevail insofar as they relate to the subject matter therein.
Some of the Services in our Platform are offered by third parties (Third Party Services) and are subject to Third Party Supplemental Terms, including separate privacy policies, which will be provided to you and apply if you elect to use such services. In case of any conflict between these Terms and the Third Party Supplemental Terms, the Third Party Supplemental Terms prevail in any matter related to the Third Party Service.
Keep in mind that any coverage, benefits, exclusions, and limitations provided in an Insurance Product is subject to the terms of such insurance policy and not these Terms.
Smirk may make the Platform available to you in connection with an employer-sponsored group health or welfare plan ("Plan"). If so, the governing Plan documents also apply to your benefits and control with respect to the Plan to the extent of any conflict with these Terms.
2. Eligibility and Who May Use the Services.
You must be at least 18 years old and a resident of the United States to create an account, use the Services, or apply for or purchase any product through the Services. By using the Services you confirm that both of those are true of you.
Persons under 18 may be enrolled as covered dependents under an Insurance Product by an eligible adult applicant, but may not themselves register for an account, transact, or use the AI Features or Telehealth Services except as expressly permitted and only with the consent and involvement of a parent or legal guardian.
We do not knowingly collect personal information directly from persons under 18 or market any services to persons under 18.
Do not submit another person's personal or health information through the Services unless you are authorized to do so.
If we obtain actual knowledge of a violation of this provision, we will take reasonable efforts to disable the relevant account(s).
3. Account Registration and Security.
Certain features require you to create an account. You agree to provide accurate, current, and complete information at registration and to keep it updated. Accurate contact information is necessary for us and the Insurer to deliver required notices about your coverage.
You are responsible for maintaining the confidentiality of your credentials and for all activity under your account.
Notify us immediately at support@smirkhealth.com if you suspect unauthorized access.
You may not share credentials, permit another person to use your account, or create an account if we have previously terminated or banned you.
We may verify the information you provide and may suspend, restrict or terminate an account where we reasonably suspect fraud, misrepresentation, unauthorized use or violation of any legal obligation, including these Terms or any Separate Terms, or law.
4. Smirk Agency.
Smirk Agency provides Insurance producer services pursuant to its insurance producer licenses in the jurisdictions in which it transacts. Smirk Agency may market, solicit, explain, facilitate applications for or enrollment in, and service Insurance Products only as permitted by applicable law and its agreements with the applicable Insurer.
Smirk Agency is not an insurance company and does not: (i) underwrite or issue Insurance Products, (ii) bear insurance risk, (iii) modify or waive Policy Documents or terms therein, (iv) make any determinations or adjudications regarding claims or appeals of claims (including acceptance or denial) or require an Insurer to pay a claim, or (v) set premiums.
When you purchase an Insurance Product through Smirk Agency, Smirk Agency may receive a commission or other compensation from the applicable Insurer or other authorized source, as permitted by law. Any required producer-compensation disclosure will be provided as required by applicable law.
Each Insurance Product is underwritten and issued solely by the Insurer identified in the applicable Policy Documents. Coverage, premiums, benefits, exclusions, limitations, effective dates, cancellation rights, claims, appeals, and other insurance rights and obligations are governed by the Policy Documents and applicable law. Insurance benefits are obligations of the Insurer, not Smirk or Smirk Agency.
5. Insurance Products.
Insurance producer services are provided by Smirk Agency.
An application is an application to the Insurer, and coverage does not begin until accepted by the Insurer and effective under the applicable Policy Documents. DO NOT CANCEL EXISTING COVERAGE UNTIL NEW COVERAGE IS EFFECTIVE.
You must answer all application questions truthfully and completely. Material misrepresentation, omission, or fraud in an application may result in rescission of coverage, denial of claims, or cancellation, as permitted by your Policy Documents and applicable law.
The Insurer may decline an application. Product availability, benefits, rates, and terms vary by state. Not all products are available in all states.
The benefits, limitations, exclusions and other terms of any Insurance Product you acquire are exclusively set out in the Policy Documents. The Smirk Terms and Conditions do not modify the Policy Documents.
If you elect to buy an Insurance Product, you agree that you will pay for it in accordance with the payment schedule, including any applicable grace period, set out in the Policy Documents. If you do not pay your premiums, you acknowledge and agree that the Insurer may cancel your plan and Smirk Agency or Smirk won't have any liability to you, even if you incur substantial medical costs while uninsured. Lapse or termination for nonpayment may affect your ability to re-enroll, and re-enrollment or reinstatement may be subject to new waiting or activation periods.
Unless otherwise stated in your Policy Documents, coverage renews automatically at the then-applicable rates and billing frequency and, subject to your prior consent, your payment method will be charged automatically at the start of each new billing period. We will provide advance notice of renewal and of any rate change to the extent required by your Policy Documents or applicable law.
Premium rates are set by the Insurer and are subject to change in accordance with your Policy Documents and applicable law.
Refunds, where available, are governed by your Policy Documents and applicable state law, and will be issued to the original payment method where practicable.
You may cancel coverage as provided in your Policy Documents, or by contacting us at support@smirkhealth.com. Cancellation is effective as provided in those documents. Unless your Policy Documents or applicable law provide otherwise, cancellation does not entitle you to a refund of premium for a period in which coverage was in force.
NOTICES:
- INDIVIDUAL INSURANCE POLICIES ARE NOT SPONSORED OR ENDORSED BY YOUR EMPLOYER. THESE VOLUNTARY POLICIES ARE NOT PART OF AN EMPLOYER-SPONSORED WELFARE BENEFIT PLAN WITHIN THE MEANING OF THE EMPLOYEE RETIREE INCOME SECURITY ACT OF 1974 (ERISA) OR ANY OTHER STATE OR FEDERAL LAW. YOUR EMPLOYER DOES NOT ENDORSE ANY POLICY OR INSURANCE CARRIER. ALL ELIGIBILITY REQUIREMENTS, BENEFITS, AND CLAIMS PROCEDURES RELATED TO THESE POLICIES ARE BETWEEN YOU AND THE INSURANCE CARRIER AND SUBJECT TO THE TERMS OF THE INDIVIDUAL POLICY.
- TO THE EXTENT APPLICABLE, ANY GROUP POLICIES SUBJECT TO EMPLOYER SPONSORED WELFARE BENEFIT PLANS WILL BE CLEARLY LABELED.
6. Fixed Indemnity Medical Insurance — Required Disclosures and Your Acknowledgment
If you purchase fixed indemnity medical insurance through the Services, this Section applies to you. Read it carefully before you enroll.
6.1. Required notice.
THIS IS A SUPPLEMENT TO HEALTH INSURANCE AND IS NOT A SUBSTITUTE FOR MAJOR MEDICAL COVERAGE. LACK OF MAJOR MEDICAL COVERAGE (OR OTHER MINIMUM ESSENTIAL COVERAGE) MAY RESULT IN AN ADDITIONAL PAYMENT WITH YOUR TAXES.
This notice, in the form required for your state of residence, is also displayed to you in at least 14-point type in the application and enrollment materials, prominently and before you elect coverage. These Terms do not replace or substitute for that notice.
6.2. How fixed indemnity insurance works.
Fixed indemnity insurance pays a fixed dollar amount for a covered event or service, in the amounts stated in your Policy Documents, regardless of what your provider actually charges and regardless of what any other coverage you have pays. The amount paid may be significantly less than the amount you are billed, and you may be responsible for the difference.
It is a limited benefit product. It is intended to supplement comprehensive health coverage, not to replace it. Benefits are payable only for the events, in the amounts, and subject to the limitations, exclusions, waiting periods, activation periods, and maximums set out in your Policy Documents.
6.3. Your acknowledgment.
By applying for, enrolling in, or paying premium for fixed indemnity medical insurance through the Services, you acknowledge that you have read this Section and that you understand each of the following:
- The coverage is not comprehensive health insurance, not major medical coverage, and not catastrophic coverage, and it is not a substitute for any of them.
- The coverage is not minimum essential coverage. It does not satisfy any federal or state requirement that you maintain minimum essential coverage. It is not a qualified health plan, it is not offered through a Health Insurance Marketplace or Exchange, and no premium tax credit or cost-sharing reduction is available for it.
- The coverage is an excepted benefit and is not required to comply with certain federal requirements that apply to comprehensive health insurance, including those relating to pre-existing conditions, essential health benefits, coverage of preventive services at no cost to you, annual and lifetime dollar limits, and limits on your out-of-pocket costs.
- Benefits are fixed dollar amounts that may be significantly less than the amounts billed by your providers, and you are responsible for all charges the policy does not pay.
- The coverage may contain waiting periods, activation periods, benefit maximums, pre-existing condition provisions, eligibility conditions, and exclusions, and you are responsible for reviewing your Policy Documents.
- The coverage is not Medicare supplement insurance, is not Medicaid or a Medicaid alternative, and is not a discount medical program, discount card, health care sharing ministry, or any other arrangement that is not insurance.
- Neither Smirk nor Smirk Agency, nor any of their employees, producers, or distribution partners, has told you that this coverage is comprehensive health insurance or that it may be used in place of comprehensive health insurance.
- You have been told where to learn about comprehensive coverage options, including whether you qualify for financial assistance and whether you are in an open or special enrollment period, and where to direct questions or complaints about this coverage.
6.4. Independent decision.
You are purchasing this coverage based on your own assessment of your needs and not in reliance on any statement inconsistent with this Section. You understand that you may be eligible for comprehensive coverage through an employer, a Health Insurance Marketplace, Medicaid, or Medicare, and that eligibility rules and enrollment periods for those programs apply independently of this coverage.
6.5. Where to get more information.
Looking for comprehensive coverage? Visit HealthCare.gov or call 1-800-318-2596 to learn about your options, including whether you qualify for financial assistance and whether you are in an open or special enrollment period.
Questions about this notice? Contact us at support@smirkhealth.com or contact your state department of insurance.
6.6. Record of your acknowledgment.
You give the acknowledgment in Section 6.3 separately from your acceptance of these Terms generally, by the means we provide during enrollment. We will retain a record of that acknowledgment, including the date and time given and the version of these Terms in effect, and will provide you a copy on request at support@smirkhealth.com.
6.7. Your Policy Documents control.
These Terms do not create, modify, expand, or limit insurance coverage. If there is any conflict between these Terms and your Policy Documents with respect to coverage, benefits, eligibility, exclusions, limitations, premiums, claims, cancellation, or your appeal rights, the Policy Documents control. Nothing in these Terms waives any right, benefit, notice, or protection afforded to you by applicable insurance law or by the terms of your Policy Documents, including your right to file a complaint with your state department of insurance.
6.8. State requirements.
Where the law of your state of residence requires a different or additional notice, disclosure, acknowledgment, or signature in connection with fixed indemnity insurance, that requirement applies to you and controls over any inconsistent provision of this Section.
7. Third-Party Services.
The Platform may make available or facilitate access to Third-Party Services, such as Telehealth Services, pharmacy or medical discount programs, medical provider networks and the AI Health Information Tool, or links to other services provided by third parties.
Third Party Services are provided by third parties, not by Smirk or Smirk Agency, and the Third-Party Provider is responsible for such service. Separate terms, privacy notices, consents, eligibility rules, fees, and disclosures may apply and may be required before you use a Third-Party Service.
Third-Party Services may be modified, suspended, discontinued, or subject to changes in provider availability, pricing, discounts, eligibility, or terms. Where practicable, Smirk Health will provide notice of material changes that it knows will affect access through the Platform. A change to or discontinuation of a Third-Party Service does not by itself change, cancel, or reduce insurance coverage under an Insurance Product.
By using any of these Third-Party Services, including by clicking on any link to a Third Party Service, subject to our Privacy Policy, you authorize us to share Personal Information to the Third Party Provider and acknowledge and agree that we do not control how such Third Party Provider uses the information.
8. Medical and Telehealth Services.
Any medical or mental health services which you access through our Services, including any Telehealth Services, are provided by independent licensed clinicians or professional entities ("Health Care Provider"). You retain full final discretion over your choice of Health Care Providers.
Health Care Providers are independent professionals or entities and are not employees or agents of Smirk or Smirk Agency. Neither Smirk nor Smirk Agency (i) practices medicine, dentistry or any other healthcare service, (ii) directs or supervises any Health Care Provider, or (iii) controls the professional judgment of a Health Care Provider. Any Health Care Provider-patient relationship arising from the medical services is between you and the Health Care Provider.
Telehealth Services are available only to Members physically located in states where a participating clinician is licensed, and are subject to state-specific restrictions. Certain services, including the prescribing of controlled substances, may be unavailable or restricted. Telehealth Services are not available outside the United States.
Clinical records of a telehealth consultation are maintained by the treating clinician or professional entity as required by law. Where a telehealth consultation is included with your enrollment at no additional charge, you will not be separately billed; where it is not, any applicable fee will be disclosed before the consultation.
Smirk does not recommend or endorse any specific tests, physicians, Health Care Providers (whether in network or out of network), products, procedures, opinions, or other information that may be mentioned on the Platform or the Services.
Regardless of whether the Health Care Provider is in-network or out-of-network, and even if the Health Care Provider was identified or booked through the Platform, neither Smirk nor Smirk Agency are responsible for such provider's (or any facility's) (i) cancellation, (ii) network status change, (iii) standard of care delivered, including any professional acts or omissions.
The Telehealth Services are not for emergencies. If you are experiencing a medical emergency, call 911 or go to the nearest emergency room immediately.
9. Provider Networks and Provider Directories
As part of the Services, we may provide you access to certain networks provided by Third-Party Providers where you are able to access medical care by Health Care Providers. Smirk may display provider-directory information supplied by those parties, but neither Smirk nor Smirk Agency guarantees that directory information is complete, current, or error-free. Inclusion in a directory does not establish insurance coverage, a guaranteed discount, or provider availability. Verify participation, price, discount, and insurance coverage, as applicable, before receiving services.
Whether and to what extent insurance benefits are payable for services received from a participating or non-participating provider is determined by your Policy Documents, not by this Section or by a provider's inclusion in a directory.
10. Pharmacy, Lab and Medical Discounts.
Our Services may include access to discounts or preferred pricing for certain pharmacy, laboratories and other medical discounts. These discounts may be provided by Smirk or Third Party Providers and subject to Supplemental Terms.
Unless expressly identified as an Insurance Product, a discount program is not insurance, does not reimburse medical expenses, and does not guarantee that a particular provider, pharmacy, item, or service will be available or offered at a particular price.
Discounts, participating providers, pharmacies, and program terms may change at any time. Any state-specific disclosures, cancellation rights, or other requirements applicable to a discount program will be provided as required by law.
You may be required to pay the full discounted price directly to the applicable provider or pharmacy. Whether a discount may be used together with insurance, a government healthcare program, or another benefit depends on the applicable program terms and law.
11. AI-Powered Tools and Outputs
Certain features of the Site and Services may utilize artificial intelligence, machine learning, or automated decision-support tools (collectively, "AI Tools") developed, owned, or operated by Smirk Health. These AI Tools are proprietary Smirk Health solutions and are not developed, endorsed, approved, or provided by any insurance carrier, dental plan issuer, provider network, partner, or other third party unless expressly stated otherwise in writing.
Outputs generated by the AI Tools are provided for informational and assistance purposes only and do not constitute medical, dental, legal, or insurance advice, nor do they replace the terms, conditions, or determinations of any insurance policy or dental discount program. Smirk Health's AI Tools do not make eligibility, underwriting, pricing, or benefit determinations on behalf of any carrier or provider.
You acknowledge that AI-generated outputs may contain errors, omissions, or limitations and may not be appropriate for your specific circumstances.
Ailene is the AI Tool that serves as Smirk's AI concierge. Ailene may assist you with Platform navigation, scheduling appointments, customer service, benefit and service navigation, and access to information or Third-Party Services.
"AI Feature" means any consumer-facing feature of the Platform that is powered by artificial intelligence, including the AI Tools and any AI Health Information Tool.
When you interact directly with Ailene or another AI Tool, we will take reasonable efforts to notify you that the interaction is AI-enabled. Where human support is available, you may request assistance from a human.
AI Tools are not used by us or the Insurer to make decisions on insurability, underwriting, premiums, or claims or appeals, including the acceptance or denial of a claim. Those decisions are made by the Insurer. Ailene may help you locate or summarize information in Policy Documents or other materials, but its responses are not an authoritative interpretation of insurance terms. For an authoritative coverage or claim determination, contact the Insurer.
Ailene may also provide coverage decision support to help you explore coverage options for Insurance Products. Any product recommendations and cost projections Ailene provides are educational only and do not constitute insurance brokerage, financial advice, or formal coverage determinations.
By asking Ailene to schedule an appointment or communicate with a third party on your behalf, you give your explicit consent for Smirk to receive, process, and communicate real-time conversational scheduling scripts based on your inputs.
AI Tools may misunderstand your request or generate output that appears plausible but is incomplete, out of date, inaccurate, or misleading. You should independently verify important information and should confirm any health-related output with an appropriately licensed healthcare professional before relying on it.
12. Health Information Tool
"AI Health Information Tool" means an AI Feature, provided by an independent Third-Party Provider, that consists of an educational health information communication technology designed to help you learn about health conditions, organize or understand health information and prepare you to communicate with health care providers.
When you ask questions about health conditions, the Platform or Ailene may refer these questions to an AI Health Information Tool. We will notify you (with pop ups or any other online disclosure) when this handoff from Ailene to the AI Health Information Tool occurs, and you may be required to consent to using the AI Health Information Tool prior to the transfer.
Your use of the AI Health Information Tools is subject to Supplemental Terms and privacy policies that are controlled and administered by the Third Party Provider.
IMPORTANT NOTICE
NO AI FEATURE (INCLUDING AILENE AND THE AI HEALTH INFORMATION TOOL) PROVIDES MEDICAL ADVICE, DIAGNOSIS, TREATMENT OR PRESCRIPTION OF ANY KIND:
- ANY CONTENT OR RESPONSE PROVIDED IS SOLELY FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT;
- WHILE AI TOOLS CAN SERVE A USEFUL PURPOSE, THEY CAN AND DO MAKE MISTAKES OR CONVEY INCORRECT OR INCOMPLETE INFORMATION;
- ALWAYS SEEK THE ADVICE OF A QUALIFIED HEALTH PROVIDER ABOUT ANY MEDICAL OR HEALTH CONDITIONS; AND
- NEVER DISREGARD MEDICAL ADVICE OR DELAY SEEKING IT BECAUSE OF ANY CONTENT OR RESPONSE PROVIDED BY AN AI FEATURE. DOING SO COULD RESULT IN SERIOUS HARM, INCLUDING PERMANENT INJURY OR DEATH.
You acknowledge and agree that:
- your reliance on any information provided in the Platform, including any AI Feature is solely at your own risk;
- You shall not use the AI Features (i) for medical diagnosis, treatment, prescription or emergencies of any kind; (ii) to respond to suicidal thoughts or intentions, self-harm, thoughts of harming others, or violent ideation; (iii) for mental, emotional, or behavioral health treatment, therapy, psychotherapy, or counseling; or (iv) any purpose prohibited by applicable law.
The AI Health Information Tool is not for emergencies. If you are experiencing a medical emergency, call 911 or go to the nearest emergency room immediately.
13. Errors in the Services, Platform or AI Features
Information provided in the Services or Platform, including information and responses provided by any AI Feature, can contain errors, inaccuracies, discrepancies, be outdated or incomplete (collectively "Errors"). We make no representations, warranties, or guarantees that information available in or through the Platform, will be free of Errors.
You must notify us immediately if you think there is an Error in your account, and we will use commercially reasonable efforts to promptly resolve it. By contacting customer service, you may also report, question, or request review of any output provided by an AI Feature that you believe is inaccurate, misleading, inappropriate, or potentially harmful.
We may correct or update information on the Platform at any time without notice.
We are not responsible for information or content provided by unaffiliated third parties.
If the Platform contains any Error for which Smirk is responsible, our sole obligation will be to use commercially reasonable efforts to correct it promptly; this is your sole and exclusive remedy.
14. Payment terms.
Certain Services or features may require payment of fees which will be disclosed to you before you complete the transaction. Unless otherwise stated, all fees are due when charged and are non-refundable.
For Insurance Products, premiums may be collected by Smirk Agency, the Insurer or the Insurer's third party administrator. The entity collecting premiums does so on behalf of the Insurer as authorized by the Insurer and applicable law.
By completing a purchase, you authorize the applicable charges and agree to pay all disclosed fees and applicable taxes.
We may use third-party payment processors to process payments. Your use of their payment services may be subject to their separate terms and privacy policies. Smirk does not store or control payment information maintained by a third-party payment processor and is not responsible for the acts or omissions of such processor, except as required by applicable law.
You represent that you are authorized to use any payment method you provide. You agree to provide accurate and complete billing information and to keep that information current. We or our payment processor may verify payment information before completing a transaction and may decline or cancel a transaction because of suspected fraud, payment problems, errors in pricing or service information, or other reasonable grounds.
For some transactions, a temporary pre-authorization may be placed on your credit or debit card. Your financial institution determines how long the authorization remains pending. Smirk is not responsible for fees or charges imposed by your bank, card issuer, or other financial institution.
California Residents. In accordance with California Civil Code § 1789.3, California residents may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
15. Electronic Communications and Consent to Electronic Delivery
"Communications" means all disclosures, terms, notices, agreements and policies, fee schedules, privacy policies, statements, records, documents, and any other information that Smirk, Smirk Agency or any Insurer may provide to you or that you may sign, submit, acknowledge, or agree to at our request.
"Marketing Communications" means (i) text messages or telephone calls to your telephone or (ii) email messages, and whose primary purpose is to advertise a product or service. Marketing Communications do not include transactional or service Communications, including those relating to (a) your account and account maintenance, including disclosures, (b) communications that facilitate or complete a transaction or service you requested, (c) reminders or explanations of purchased benefits, appointments, or (d) communications about any claims or appeals under your Insurance Products.
By agreeing to these terms and providing your email address and phone number, you agree to receive all Communications from Smirk, Smirk Agency or any Insurer in electronic format, to the fullest extent allowed under applicable law, including by: (1) email using the email address you provide to us; (2) by text message using the mobile telephone number you provide to us; (3) push notifications on your mobile device or Smirk mobile app; or (4) by posting or making Communications available through the Platform, including in your account center. To the full extent permitted by applicable law, you agree that Communications provided electronically satisfy any legal requirement that such Communications be provided in writing.
Electronic Communications are effective when sent or made available to you, regardless of whether you read or access them, except where applicable law requires otherwise.
You acknowledge that electronic Communications, including text messages and emails, are not always secure or confidential. By providing us with your mobile telephone number and email address, you consent to our communicating with you through those channels despite these risks.
Withdrawing your consent:
- You may withdraw your consent to receive Marketing Communications delivered via email by following the unsubscribe option in the email itself.
- You may also withdraw your consent to receive Marketing Communications by text or phone by emailing our customer service.
- You may opt-out of receiving text messages by replying STOP from the mobile phone receiving the messages.
- You may withdraw your consent to receive electronic Communications by contacting us, but in such case you agree that we may close your Account.
You agree that we may take a reasonable time after receipt of your notification to process your withdrawal of consent and that during this interim time, you may continue to receive some communications.
Your withdrawal of consent for Marketing Communications or your opting-out of text messages does not affect the consent to receive Communications in electronic format.
If required by law, we will deliver certain Communications to you on paper even though you have consented to receive it electronically.
16. Information you provide to us.
"Personal Information" means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked to an individual or household, as defined by applicable law, and including Personal Health Information.
"Personal Health Information" information that means and identifies an individual, or can be used to identify an individual, and relates to the individual's physical or mental health, health status, healthcare services available to or used by such individual, or to the payment or cost information for healthcare.
In the course of using any of the Services, to the extent that you provide us any Personal Information or Personal Health Information, you represent that you possess all necessary legal authorizations to submit all such information and that any person whose information you submit has validly consented to your providing such information to us.
Our use of Personal Information, including Personal Health Information, is subject to the Smirk Privacy Policy.
17. Changes in the Platform or Services.
Subject to any preexisting legal obligation with you, we reserve the right to change the Services, Platform and any features at any time at our discretion.
18. Recording, transcription, and quality review.
Interactions with the Services, including AI chat sessions, telephone calls, and text messages, may be recorded, transcribed, summarized, and reviewed for quality assurance, safety monitoring, service improvement, and compliance purposes. Automated tools may be used for these purposes. Our handling of this information is described in our Privacy Policy.
19. Acceptable Use
You agree to use the Platform and Services only for individual or family non-commercial use, for lawful purposes and only as permitted by these Terms.
You agree that you will not, directly or indirectly, including by assisting any other person to, engage in any of the following activities, each of which constitute a material breach of these Terms:
- Interfere with, disrupt, overburden, or impair the Platform or Services or any network or system connected to them, or attempt to do so;
- Attempt to gain unauthorized access to the Platform or Services, to another user's account, or to any system or data;
- Circumvent, disable, degrade, or thwart any security feature, access control, rate limit, or content protection;
- Use any robot, spider, crawler, scraper, or other manual or automated means to access the Platform or the Services to extract, copy, monitor or collect data from them;
- Reverse engineer, decompile, disassemble, or attempt to derive the source code, underlying ideas, models, prompts, or algorithms of the Platform or Services;
- Provide false, inaccurate, or misleading information, impersonate any person, or misrepresent your affiliation with any person or entity;
- Submit or transmit any virus, malware, or other harmful code;
- Upload, transmit, or store content that is unlawful, infringing, defamatory, obscene, harassing, abusive, discriminatory, hateful, or invasive of another's privacy or publicity rights;
- Infringe the intellectual property right of Smirk, Smirk Agency or any other person;
- Submit another person's personal information or protected health information without authority;
- Use the Platform or Services to harass, harm, or defraud any person or entity;
- Use the Platform or Services for any commercial purpose other than your own use as a user or Member; or
- Engage in any conduct that is reasonably deemed by us to be abusive, disruptive, unlawful or that could expose us, any of our Third Party Providers or customers to any liability or detriment of any type.
We reserve the right (but are not obligated) to: (i) record any interaction between you and the Platform or customer service, (ii) investigate any potential breach of these terms, (iii) remove any communications at our sole discretion, (iv) immediately suspend or terminate any user that we reasonably believe has breached these Terms, (v) report any potentially unlawful conduct to law enforcement. Neither Smirk nor Smirk Agency have any liability to any Member, user of the Platform, or any other person for the performance or non performance of these activities.
Additionally, we may immediately suspend or terminate your access to the Platform, Service or any part thereof in case of (i) discontinuation of the Service or Platform or feature (or any part thereof), (ii) security or technical issues or glitches, (iii) your inactivity, or (iv) termination or suspension of the provision of a Third Party Service by a Third Party Provider. The Platform or Service may be inaccessible due to outages, maintenance, or causes beyond our reasonable control.
20. Intellectual Property
The Platform, Services and its content—including text, graphics, design, software, models, and Smirk trademarks—are owned by Smirk, Smirk Agency or their licensors and are protected by intellectual property laws. Subject to your compliance with these Terms, Smirk grants you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Platform and to view and retain content for your own personal, non-commercial use, including downloading or printing your own policy documents and benefit information.
All rights not expressly granted are reserved. Smirk's name, logos, and marks may not be used without our prior written consent. Other marks appearing on the Services belong to their respective owners.
21. User content and Feedback.
Some features may allow you to upload, submit or publish content for the purpose of sharing with other Members or users (collectively "User Content"). You automatically grant or warrant that the owner of such content or intellectual property has expressly granted us a royalty-free, perpetual, irrevocable, worldwide, non-exclusive, fully paid up, transferable, sublicensable right and license to use, reproduce, copy, create derivative works from, modify, adapt, publish, edit, translate, distribute, transmit, host, and otherwise exploit such User Content in any media or medium, or any form, format, or forum. Do not submit or publish User Content if you seek to protect the confidentiality or intellectual property of the information or content.
For purposes of clarity, "User Content" does not include information that you submit for the primary purpose of obtaining pricing information, completing an application for Insurance, scheduling appointments, receiving customer service or for your personal use of the Services.
If you send us suggestions or any type of feedback about the Platform or Services, you grant us an unrestricted, perpetual, worldwide, irrevocable, fully-paid, royalty-free right to use it for any purpose without any obligation or compensation to you.
Disclaimers and limitations of liability.
EXCEPT AS EXPRESSLY STATED IN THESE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW:
(i) THE PLATFORM AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE;"
(ii) SMIRK AND SMIRK AGENCY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING (A) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, (B) ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE, AND (C) WARRANTIES TO THOSE DEFINED AS "CONSUMERS" IN THE MAGNUSON-MOSS WARRANTY ACT;
(iii) SMIRK AND SMIRK AGENCY DO NOT WARRANT THAT THE PLATFORM OR ANY CONTENT OR SERVICES AVAILABLE THROUGH IT WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, CURRENT, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT YOU WILL ACHIEVE SUCCESSFUL RESULTS FROM FOLLOWING ANY INSTRUCTIONS OR DIRECTIONS FROM THE PLATFORM OR SERVICE;
(iv) NO ORAL OR WRITTEN INFORMATION OR ADVICE OBTAINED THROUGH THE PLATFORM CREATES ANY WARRANTY NOT EXPRESSLY PROVIDED IN THESE TERMS; AND
(v) YOU USE THE PLATFORM, THE SERVICES AND ACCESS OR DOWNLOAD CONTENT AT YOUR OWN RISK.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SMIRK, SMIRK AGENCY, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, LICENSORS, AND SERVICE PROVIDERS:
(i) WILL NOT BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, USE, DATA, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE PLATFORM, SERVICES, INSURANCE PRODUCER SERVICES PROVIDED BY SMIRK AGENCY, THESE TERMS, OR YOUR USE OF OR INABILITY TO USE ANY OF THE FOREGOING, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
(ii) WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM: (A) YOUR USE OF OR RELIANCE ON INFORMATION, MATERIALS, CONTENT, OR SERVICES AVAILABLE THROUGH THE PLATFORM; (B) YOUR INABILITY TO ACCESS OR USE THE PLATFORM OR SERVICES; (C) LOSS, DELETION, OR CORRUPTION OF DATA; (D) UNAUTHORIZED ACCESS TO OR INTERCEPTION OF INFORMATION TRANSMITTED THROUGH THE PLATFORM; (E) ANY THIRD-PARTY WEBSITE, PRODUCT, SERVICE, CONTENT, OR INFORMATION ACCESSIBLE THROUGH OR LINKED FROM THE PLATFORM; (F) SERVICES PROVIDED TO YOU BY A HEALTH CARE PROVIDER, WHETHER IN OR OUT OF NETWORK, AND REGARDLESS OF WHETHER YOU IDENTIFIED OR SCHEDULED THEM THROUGH THE PLATFORM OR SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF SMIRK HEALTH AND SMIRK AGENCY, RESPECTIVELY, ARISING OUT OF OR RELATING TO THESE TERMS, THE PLATFORM, SERVICES, OR, IN THE CASE OF SMIRK AGENCY, ITS INSURANCE PRODUCER SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT YOU PAID DIRECTLY TO THE APPLICABLE ENTITY FOR THE RELEVANT SERVICE DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not permit the exclusion of certain warranties or the limitation or exclusion of certain types of damages. Accordingly, some of these limitations may not apply to you, and you may have additional rights under applicable law.
California Residents
If you are a California resident, you expressly waive, to the fullest extent permitted by law, the protections of California Civil Code § 1542 with respect to claims released under these Terms. Section 1542 provides: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
22. Indemnification.
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Smirk, Smirk Agency, and their respective directors, officers, members, managers, employees, agents, licensors, and service providers from and against any claims, actions, liabilities, losses, damages, judgments, costs, and expenses, including reasonable attorneys' fees, arising out of or relating to: (a) your unauthorized use of, or misuse of the Platform or Services; (b) your misuse of insurance producer services provided by Smirk Agency; (c) your violation of these Terms; (d) any false, inaccurate, or misleading information or representation you provide in connection with the Platform, Services, or an application for or enrollment in an Insurance Product; (e) your violation of applicable law; (f) your infringement or violation of another person's rights; (g) your negligence, intentional misrepresentation, fraud, or intentional misconduct, or (h) any dispute or issue between you and any third party.
Smirk and Smirk Agency each reserve the right, at their own expense, to assume the exclusive defense and control of any matter for which they are entitled to indemnification under this Section. You agree to reasonably cooperate in the defense of any such matter. You may not settle any claim subject to indemnification in a manner that imposes any liability, obligation, admission, or restriction on Smirk or Smirk Agency without the affected entity's prior written consent.
23. Governing Law.
These Terms and any dispute, claim, or controversy arising out of or relating to these Terms, the Platform, the Services, your relationship with Smirk Health, Inc., or insurance producer services provided by Smirk Health Agency, LLC will be governed by the laws of the State of Texas, without regard to conflict-of-law principles, except to the extent governed by federal law, including the Federal Arbitration Act. Nothing in this Section limits any non-waivable rights or remedies available to you under applicable law.
24. Dispute Resolution, Arbitration, and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES MOST DISPUTES TO BE RESOLVED THROUGH FINAL AND BINDING INDIVIDUAL ARBITRATION, NOT IN COURT. IT ALSO INCLUDES A WAIVER OF THE RIGHT TO A JURY TRIAL AND A WAIVER OF THE RIGHT TO PARTICIPATE IN ANY CLASS, COLLECTIVE, CONSOLIDATED, REPRESENTATIVE, PRIVATE-ATTORNEY-GENERAL, OR MASS ACTION, EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
24.1. Waiver of Jury Trial. YOU, SMIRK HEALTH, INC., AND SMIRK HEALTH AGENCY, LLC EACH KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT TO HAVE ANY DISPUTE SUBJECT TO ARBITRATION UNDER THIS SECTION DECIDED BY A JUDGE OR JURY IN COURT, EXCEPT FOR CLAIMS PROPERLY BROUGHT IN SMALL CLAIMS COURT.
24.2. Informal Resolution Required Before Arbitration. Before either party initiates arbitration or any small claims lawsuit, the party asserting a dispute must provide the other party with individualized written notice of the dispute, which is referred to in this Section as a "Dispute Notice," and allow at least 30 days for the parties to attempt in good faith to resolve the dispute informally (the "Notice Period").
24.2.1. A Dispute Notice from you must include your name, mailing address, email address, telephone number, account identifier, if any, a reasonable description of the nature and basis of the dispute, the specific relief sought, including any amount claimed, and, if submitted by counsel or another representative, a statement signed by you authorizing that representative to act on your behalf.
24.2.2. Dispute Notices to Smirk Health, Inc. or Smirk Health Agency, LLC must be sent to 166 Hargraves Drive, Ste C-400 PMB 131, Austin, TX 78737.
24.2.3. Smirk Health, Inc. or Smirk Health Agency, LLC may send a Dispute Notice to you using the contact information associated with your account or otherwise available to the applicable Smirk entity.
24.2.4. During this Notice Period, the parties agree that they will meet telephonically or via video conference to attempt to resolve the dispute in good faith before a small claims lawsuit or arbitration will be filed (the "Conference"). The Conference shall be individualized such that multiple individuals initiating a Claim cannot participate in the same Dispute Conference, unless all parties agree. Participating in good faith in the Conference is a requirement that must be completed before filing a small claims lawsuit or arbitration demand. The statute of limitations and any filing fee deadlines shall be tolled during the Notice Period and until the Parties complete the Conference required by this section.
24.3. Binding Individual Arbitration. If the parties do not resolve the dispute through the informal process described above, you and Smirk and Smirk Agency agree that any dispute, claim, or controversy between you and Smirk or Smirk Agency (a "Claim") will be resolved by final and binding individual arbitration, except as expressly provided in this Section 24.3.
24.3.1. This arbitration agreement applies regardless of whether a Claim is based in contract, tort, statute, fraud, misrepresentation, consumer-protection law, privacy law, or any other legal theory, and regardless of whether the claim arises before, during, or after termination of these Terms.
24.3.2. Smirk Health, Inc. and Smirk Health Agency, LLC are separate legal entities. Each Smirk entity, and each of its respective parents, subsidiaries, affiliates, officers, directors, employees, agents, representatives, vendors, service providers, successors, and assigns, may enforce this Section with respect to claims asserted against it arising out of or relating to the Platform, the Services, or these Terms. Nothing in this Section makes either Smirk entity responsible for the acts, omissions, obligations, or liabilities of the other.
24.3.3. Both you and Smirk or Smirk Agency may assert a Claim in a small claims court with competent jurisdiction in the county or city where you reside, provided the Claim is individual. If an individual Claim is filed in a small claims court and later (i) attempts to include any class or representative claims, regardless of the amount of dispute in any single Claim, or (ii) is transferred or appealed to another court, in either instance (i) or (ii), either you or Smirk or Smirk Agency could elect to subject it to arbitration by providing written notice within 30 days of written notification of the transfer or appeal.
24.4. Federal Arbitration Act; AAA Consumer Rules; Substitute Administrator. This arbitration agreement is governed by the Federal Arbitration Act.
24.4.1. The arbitration will be administered by the American Arbitration Association, referred to in this Section as "AAA," under its Consumer Arbitration Rules then in effect, including any applicable consumer due-process standards and any applicable AAA rules or procedures governing mass filings, as modified by these Terms to the extent permitted by those rules and applicable law.
24.4.2. The arbitration will be conducted before one neutral arbitrator selected in accordance with the AAA Consumer Rules.
24.4.3. If AAA is unavailable, declines to administer an arbitration, or is unable to administer an arbitration in accordance with this Section, the parties will confer in good faith to select a substitute arbitration administrator. If the parties cannot agree on a substitute administrator within 30 days, either party may ask a court of competent jurisdiction to appoint an arbitrator or arbitration administrator consistent with this Section.
24.4.4. If any provision of this Section conflicts with a mandatory provision of the AAA Consumer Rules, any applicable AAA rules governing mass filings, or applicable consumer arbitration law, the mandatory provision will control, but only to the extent of the conflict.
24.4.5. For a copy of the Rules or to file a Claim, you may contact the AAA at 1-800-778-7879, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043; website at www.adr.org/consumer.
24.5. Arbitration Procedures; Seat; Hearings. Arbitration is intended to provide a less formal, more efficient, and less costly means of resolving disputes than litigation in court.
24.5.1. The parties will exchange nonprivileged information reasonably necessary to resolve the dispute, and the arbitrator may permit additional discovery only to the extent authorized by the AAA Consumer Rules.
24.5.2. The arbitrator may limit cumulative, duplicative, disproportionate, or unduly burdensome discovery.
24.5.3. Where permitted by the AAA Consumer Rules, the dispute may be decided based on written submissions without a hearing.
24.5.4. The arbitrator may consider dispositive motions when permitted by the AAA Consumer Rules and appropriate to efficiently resolve or narrow the dispute.
24.5.5. Unless applicable law or the AAA Consumer Rules require otherwise, any conference or hearing may be conducted by telephone, videoconference, or other remote means.
24.5.6. To the maximum extent permitted by applicable law, the legal seat of arbitration will be Austin, Travis County, Texas, and conducting a hearing remotely or at another permissible physical location will not change the agreed legal seat of arbitration.
24.6. Arbitrator's Authority. Except as otherwise expressly provided in this Section 24.6, the arbitrator will have exclusive authority to resolve disputes concerning the interpretation, applicability, scope, formation, or enforceability of this arbitration agreement, including any Claim that all or any part of this arbitration agreement is void or voidable.
24.6.1. The arbitrator may award only individual relief or remedies that would be available to the individual claimant in a court of competent jurisdiction, subject to these Terms and applicable law.
24.6.2. The arbitrator may not award relief for or against any person who is not a party to the arbitration, except to the extent required by applicable law.
24.6.3. The arbitrator will apply applicable substantive law and statutes of limitations and will honor legally recognized privileges.
24.6.4. The arbitrator will issue a written decision stating the essential findings and conclusions on which the award is based.
24.6.5. The award will be final and binding, subject to the limited judicial review permitted by the Federal Arbitration Act, and judgment on the award may be entered in any court having jurisdiction.
24.6.6. The arbitrator shall not have authority, and authority is solely vested in a court of competent jurisdiction, to decide all claims related to the class action waiver of Section 24.7, including claims related to its validity, enforceability or breach.
24.6.7. The arbitrator may award declaratory or injunctive relief only in favor of the individual party bringing a Claim and only to the extent such relief is necessary to provide relief warranted by such party's individual Claim. In case of any arbitral decision in which public injunctive relief is sought, the entitlement to and scope of such relief must be litigated in a court of competent jurisdiction, not in arbitration. Any litigation seeking public injunctive relief shall be stayed until the outcome of an arbitral decision (whether individual arbitration or mass arbitration); and prior to issuing injunctive relief a court of competent jurisdiction shall independently review, and not give deference to, the factual findings of the arbitral award.
24.7. Class, Collective, Consolidated, and Representative Action Waiver. YOU, SMIRK HEALTH, INC., AND SMIRK HEALTH AGENCY, LLC AGREE THAT, EXCEPT AS PROVIDED IN THE MASS ARBITRATION SECTION, EACH PARTY MAY ASSERT CLAIMS AGAINST ANOTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLAIMANT, CLASS MEMBER, COLLECTIVE MEMBER, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE-ATTORNEY-GENERAL, REPRESENTATIVE, OR MASS ACTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
24.7.1. Unless all affected parties agree otherwise in writing, and except as expressly provided in the mass-arbitration procedures below, the arbitrator may not consolidate the claims of more than one individual, join the claims of more than one individual, or preside over any class, collective, consolidated, private-attorney-general, representative, or mass arbitration.
24.7.2. Any dispute concerning the validity or enforceability of this Section 24.7, in whole or in part, will be decided by a court of competent jurisdiction rather than by the arbitrator.
24.8. Mass Arbitration Procedures. If 25 or more substantially similar arbitration demands are asserted against Smirk Health, Inc., Smirk Health Agency, LLC, or their respective affiliates, officers, directors, employees, agents, representatives, service providers, successors, or assigns by or with the assistance of the same law firm, group of law firms, organization, or coordinated group of claimants within any 30-day period, those demands will be treated as "Mass Arbitration Demands" and will be subject to this Section 24.8.
24.8.1. Before any Mass Arbitration Demand may proceed, each claimant must satisfy the informal dispute resolution requirements in Section 24.2 on an individual basis.
24.8.2. Each Mass Arbitration Demand must identify the individual claimant, describe the claimant's individual dispute, state the specific relief sought by that claimant, and include a certification that the claimant has authorized the filing of the demand and that the claimant's counsel or representative has made a reasonable inquiry into the factual basis for the individual Claim.
24.8.3. Mass Arbitration Demands will proceed in staged batches. Unless the parties agree otherwise or the arbitration administrator requires a different procedure under its mandatory rules, the arbitration administrator will randomly select up to 10 demands to proceed first as bellwether arbitrations.
24.8.4. The remaining Mass Arbitration Demands will be held in abeyance, and no filing, administrative, case-management, arbitrator, or other arbitration fees will be due for any held demand unless and until that demand is selected to proceed, except to the extent required by the AAA Consumer Rules, any applicable AAA rules governing mass filings, or applicable law.
24.8.5. After the bellwether arbitrations are completed, the parties will participate in a mediation of the remaining Mass Arbitration Demands. If the remaining Mass Arbitration Demands are not resolved through mediation, they will proceed in additional batches of 25 (or batches of 100 if more than 100 Claims are subject to mass arbitration) demands at a time, unless the parties agree otherwise. One arbitrator shall be appointed for each batch and each batch will be resolved as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) and one final arbitral award. Subject to 24.8.3 for the bellwether arbitrations, Batches shall proceed concurrently.
24.8.6. Any applicable limitations period for a Mass Arbitration Demand held in abeyance will be tolled from the date that demand is first submitted to the arbitration administrator until the demand is selected to proceed, withdrawn, resolved, or otherwise terminated.
24.8.7. A court of competent jurisdiction, and not the arbitrator, will decide any dispute concerning the validity or enforceability of this Section 24.8. If this Section 24.8 is found unenforceable as to any Mass Arbitration Demand, that demand will remain subject to individual arbitration unless Section 24.7 is also found unenforceable as to that demand.
24.9. Exceptions. Notwithstanding this arbitration agreement:
24.9.1. either party may bring an individual action in small claims court if the Claim qualifies, remains only in that court, and proceeds only on an individual basis;
24.9.2. Smirk Health, Inc. or Smirk Health Agency, LLC may seek judicial relief concerning the infringement, misappropriation, or unauthorized use of its intellectual property, confidential information, proprietary rights, or Platform security;
24.9.3. nothing in this Section prevents you from filing a complaint with, communicating with, participating in an investigation by, or seeking relief through any federal, state, or local governmental or regulatory agency, including an insurance regulator, to the extent permitted by applicable law; and
24.9.4. nothing in this Section requires arbitration of any Claim, appeal, grievance, external review, benefit determination, insurance coverage dispute, or other proceeding that applicable law does not permit to be resolved by binding arbitration.
24.10. Third-Party Disputes. This arbitration agreement does not, solely by reason of your use of the Platform or Services, govern disputes between you and any insurance carrier, third-party administrator, healthcare provider, or other third-party product or service provider. Any such dispute is governed by the applicable policy documents, provider terms, or other agreement governing your relationship with that third party.
24.11. Arbitration Fees and Costs. Filing fees, administrative fees, arbitrator compensation, and other arbitration costs will be allocated as required by the AAA Consumer Rules, any applicable AAA rules governing mass filings, and applicable law. Smirk Health, Inc. or Smirk Health Agency, LLC, as applicable, will pay any fees that the AAA Consumer Rules, any applicable AAA rules governing mass filings, or applicable law require the business to pay.
24.11.1. Each party will otherwise bear its own attorneys' fees and expenses unless applicable law, these Terms, or the arbitrator's award provides otherwise.
24.11.2. Nothing in this Section requires you to pay arbitration costs that you would not be required to pay under the AAA Consumer Rules, any applicable AAA rules governing mass filings, or applicable law.
24.11.3. The arbitrator may award fees or costs against a party for frivolous, bad-faith, or improper conduct only to the extent permitted by applicable law and the applicable arbitration rules.
24.12. Offers of Settlement. Either party to a Claim may, but is not obligated to make a written settlement offer for a Claim. If an arbitral award for such Claim later turns out to be less favorable than a written offer of settlement that the receiving party did not accept, then that party must pay all reasonable costs and fees, including arbitration fees, incurred by the offering party after the written settlement offer was made. A party must file any post-award motion for costs and fees based on a rejected written settlement offer within 15 days from the date of the final arbitral award. The arbitrator shall retain continuing jurisdiction to award fees and costs for thirty days following the date of the arbitral award.
24.13. Forum for Non-Arbitrable Disputes. To the maximum extent permitted by applicable law, any dispute, claim, or controversy that is not subject to arbitration under this Section must be brought exclusively in the state or federal courts located in Travis County, Texas, and each party consents to the personal jurisdiction and venue of those courts. This Section does not prevent either party from seeking relief in any court of competent jurisdiction to enforce an arbitration award or to seek temporary, preliminary, or provisional relief as permitted by this Section.
24.14. Severability. Except with respect to the Class, Collective, Consolidated, and Representative Action Waiver in Section 24.7 and the Mass Arbitration Procedures in Section 24.8, if any portion of this arbitration agreement is found unenforceable, that provision will be severed to the minimum extent necessary and the remainder will remain effective.
24.14.1. If Section 24.7 is finally determined to be unenforceable as to a particular claim or request for relief, that claim or request for relief will be resolved in a court of competent jurisdiction rather than through class, collective, consolidated, private-attorney-general, representative, or mass arbitration, while any arbitrable individual claims will remain subject to arbitration to the fullest extent permitted by law.
24.14.2. If Section 24.8 is finally determined to be unenforceable as to a particular Mass Arbitration Demand, that demand will remain subject to individual arbitration, and the remainder of this arbitration agreement will remain effective to the fullest extent permitted by law.
24.15. Survival. This Section survives termination of these Terms, closure of your account, cessation of your use of the Platform or Services, and any assignment or transfer of these Terms.
25. Limitation Period
To the extent permitted by applicable law, any claim arising out of or relating to the Platform, the Services or these Terms must be brought within one year after the claim arose, or it is permanently barred.
26. Termination and Suspension
Smirk may suspend or terminate your access to the Platform or any Platform feature if you breach these Terms, if it reasonably suspects fraud or unlawful use, if required by law, if a Third-Party Provider discontinues an integrated service, or if Smirk discontinues the Platform.
Suspension or termination of Platform access or Insurance Producer Services does not by itself terminate an Insurance Product; insurance coverage terminates only as provided in your Policy Documents and applicable insurance law.
27. Changes to These Terms
We may update these Terms from time to time. We will update the "Last Updated" date at the top. If a change is material, we will provide reasonable advance notice before it takes effect, and where required by law we will obtain your consent.
Non-material changes take effect on posting.
Your continued use of the Services after a change (whether material or non-material) takes effect constitutes acceptance.
If you do not agree to a change, stop using the Services.
28. Miscellaneous
These Terms, together with the Privacy Policy and any Supplemental Terms expressly incorporated, constitute the entire agreement between you and Smirk and Smirk Agency regarding the Platform and Services and supersede prior agreements between you and the Smirk entities on that subject.
If any provision is held unenforceable, it will be modified to the minimum extent necessary or severed, and the remaining provisions will remain in effect.
Our failure to enforce a provision is not a waiver of it.
You may not assign these Terms without our prior written consent. Smirk and/or Smirk Agency may assign them, including in connection with a merger, acquisition, or sale of assets, on notice to you.
We are not liable for any failure or delay in performance caused by events beyond our reasonable control, including acts of God, natural disaster, war, terrorism, civil unrest, labor disputes, epidemic or pandemic, governmental action, utility or telecommunications failure, or failure of a third-party service provider. This does not excuse the Insurer from any obligation under an insurance policy.
Except as expressly stated, these Terms create no third-party beneficiary rights.
Titles and headings are for convenience only and have no legal effect.
Any provision of these Terms that by its nature or express terms is intended to survive termination will survive termination of these Terms, closure of your account, and cessation of your use of the Platform or Services, including provisions relating to ownership, license restrictions, payment obligations, disclaimers, limitations of liability, indemnification, dispute resolution, governing law, and any accrued rights or remedies.
29. Notices.
We may give you legal and Service notices by email to the address on your account.
For legal notices to Smirk or Smirk Agency, they must be sent as follows:
Smirk Health, Inc.
Attention Legal Department
166 Hargraves Drive, Ste C-400 PMB 131, Austin, TX 78737
Smirk Health Agency, LLC
Attention Legal Department
166 Hargraves Drive, Ste C-400 PMB 131, Austin, TX 78737