Digital Sales Terms and Conditions | Media Sales Plus, Inc

ADVERTISING TERMS AND CONDITIONS

The terms used in this Agreement with initial capital letters have the meanings set forth herein unless expressly defined elsewhere in the body of this Agreement, an SOW or its Appendices.

Definitions:

“Advertiser” means the person or persons entering into this Agreement including its representatives and authorized advertising agencies on their behalf.

“Advertising Agency” means any recognized advertising agency that is placing advertising on behalf of an Advertiser and said Advertising Agency is not owned or affiliated with Advertiser.

“Advertisements” means all paid advertisements placed on behalf of an Advertiser.

“Company” means the company itself, its affiliates, third-party providers, and vendors acting on their behalf or providing some or all of the services herein.

“Term” means the term of this Agreement as set forth herein.

General – Advertiser desires to procure from Company certain online Services for use in connection with the operation of Advertiser’s business. The Services may include, without limitation, the creation and maintenance of a business profile landing page, search engine marketing, search engine optimization, social media management and integration, SMS and email marketing, and/or website development and hosting. Any selected Services must be specified in the Order. Advertiser may order additional Services from time to time by executing additional Orders. Advertiser acknowledges and agrees that the Services will be provided to Advertiser by Company’s third-party service provider (“Service Provider”) and/or such Service Provider’s third-party vendors (each a “Vendor”). Company’s provision, and Advertiser’s use, of all such Services are subject to the terms of this Agreement, including any Service-specific terms set forth in the Order.
Term – This Agreement becomes effective on the Effective Date and shall continue for a one (1) year term thereafter unless as may be terminated earlier as set forth herein (“Initial Term”). Following the Initial Term, this Agreement shall continue for successive one (1) month terms (“Successive Term(s)) unless Advertiser provides Company with a written notice to terminate no less than thirty (30) days prior to the then-current term. Any future and paid advertising past termination shall continue to run as scheduled until it expires accordingly.
Termination – Company maintains the right to reject any advertising order and may immediately terminate this Agreement upon notice to Advertiser for (a) failure to make payments by Advertiser; (b) if Advertiser fails to perform any of its obligations set forth in this Agreement; or (c) it is determined solely by Company that any of the advertising may be in violation or conflict with any laws or regulations.
Rates – Advertiser shall pay the applicable rates for the Advertising Order set forth above throughout the term with payment terms of net thirty (30) days after the date of the invoice. A late payment charge of one and one-half (1.5%) will be added to all past due invoices.
Advertising Agency – Any Advertiser that uses an Advertising Agency that places advertising on their behalf is considered an agent representing the Advertiser. The Advertising Agency acting on behalf of the Advertiser, therefore, agrees to the terms and conditions set forth herein including without limitation to all payment obligations.
Launch of Services – Upon execution of an Order, Company will submit the Order to its Service Provider(s) for processing. Subject to Company receiving, in a timely fashion, any materials from Advertiser that are required to launch each applicable Service, Company will use commercially reasonable efforts to launch each such Service on behalf of Advertiser on a live basis within twenty (20) business days after the Order has been processed by Company’s Service Provider.
Proofs; Responsibility for Ads – Advertiser shall not be entitled to receive a proof of any display advertising (each an “Ad”) created in connection with any Services ordered under this Agreement. Company makes no representation or warranty that any Ad will not be similar to, or resemble, any other Ad that is produced by Company or its Service Provider. Notwithstanding the foregoing, to the extent Advertiser has purchased website development services pursuant to an Order, Advertiser will have the opportunity to review and approve such website prior to launch.
Placement – Positioning of Ads is at Company’s discretion. Company reserves the right to edit, revise, reject or cancel any Ad(s), space reservation or position commitment at any time. Company will make efforts to afford Advertiser the Ad position(s) desired; however, under no circumstances is position guaranteed and Ads must be paid for regardless of position.
No Guarantees – Advertiser acknowledges that Company has not made and does not make any guarantees with respect to usage statistics or levels of impressions that will be delivered with respect to Ads placed on one or more websites. If Company provides Advertiser with any estimated usage and/or impression statistics, it does so only as a courtesy to Advertiser and will not be held liable for any claims relating to said statistics. Company may reject any link embedded in any Ad. If, for any reason, Company, in its sole discretion, is unable to publish any Ad(s) in accordance with the terms of this Agreement or the applicable Order, Company will either (1) refund to Advertiser the amounts paid for such Ad(s) not published; (2) publish the Ad(s) at a later date, as reasonably determined by Company; or (3) publish the Ads in a different position, as determined by Company in its sole discretion.
License to Advertiser Materials; Publicity – Advertiser grants to Company a worldwide, non-exclusive, royalty-free license (with the right to sublicense to its Service Provider and/or such Service Provider’s Vendors) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute any all drawings, pictures, slogans, text, audio, video, or other content furnished by or on behalf of Advertiser under the applicable Order (collectively, “Advertiser Materials”) in the media and via the distribution methods expressly contemplated in the applicable Order. Company may modify or adapt the Advertiser Materials to the extent necessary to transmit, display or distribute it over computer networks and in various media and/or make changes to Advertiser Materials to the extent necessary to provide the Services and to conform and adapt the Advertiser Materials to any requirements or limitations of any networks, devices, services or media. Advertiser acknowledges and agrees that Company may use Advertiser’s results of Services in Company testimonials, videos and other advertisements that publicize Company services.
Delivery of Advertiser Materials – Advertiser will, at its expense, provide all Advertiser Materials necessary for Company and/or its Service Provider to provide the Services. Such Advertiser Materials will be provided in accordance with Company’s policies in effect from time to time, including, without limitation, policies regarding the manner of transmission to Company and the delivery time prior to publication of the Advertiser Materials. Advertiser acknowledges that Advertiser’s delay in delivering materials to Company by any applicable deadline may delay the launch date for the Services for which such materials are being provided. All expenses connected with the delivery to Company of advertising material or other web page content of Advertiser and any cost for return of such materials from Company will be paid by Advertiser. Company may dispose of any such materials delivered to it unless Advertiser has made acceptable prepaid return arrangements. Company will not be responsible for any material that is not properly displayed or that cannot be accessed or viewed because the material was not received by Company in the proper form, in a timely manner, or in an acceptable technical quality for display within the applicable Company locations. Company will not be liable for typographical errors, incorrect insertions or omissions in any Advertiser Materials displayed in connection with the Services.
Payment Terms – The fees for the Services are set forth in the Order. Fees must be paid in advance each month and in an amount equal to the Total Monthly Rate. Fees will be charged to the credit card and/or automatic checking account withdrawal identified in the Order unless Advertiser has made other arrangements with Company (provided that Company will be under no obligation to accept any form of payment other than credit card payments). Advertiser is responsible for ensuring that its credit card information is up to date at all times. By executing this Agreement, Advertiser hereby authorizes Company to charge Advertiser’s credit card for all applicable Services within two (2) business days after Company’s initial receipt of the Order. Claims for errors in billing must be made by Advertiser within thirty (30) days after the due date for each applicable payment or such claims will be forfeited. Unpaid amounts will accrue interest at the rate one and one-half percent (1.5%) per month, or the highest amount permitted by law, whichever is less, until such amounts are paid. In addition, Advertiser shall reimburse Company on demand for all reasonable costs and expenses incurred by Company in collecting any unpaid amounts (including, but not limited to, all fees and disbursements of counsel) and/or any collection agency of Company.
Taxes – Advertiser shall be responsible for all taxes, duties, fees and other governmental charges of any kind arising out of or relating to the Services.
Termination – Company may, in its sole discretion, terminate this Agreement or suspend the Services in the event Advertiser fails to pay any amount owed hereunder when due and fails to cure such non-payment within fifteen (15) days following the due date. Without limiting the foregoing, Company may terminate this Agreement at any time, with or without cause, upon ten (10) days after written notice to Advertiser. This Agreement will automatically terminate, without notice (i) upon the institution by or against Advertiser of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of Advertiser's debts; (ii) upon Advertiser making an assignment for the benefit of creditors; or (iii) upon Advertiser’s dissolution. Advertiser may terminate this Agreement in the event of a material breach by Company that remains uncured for a period of thirty (30) days following Company’s receipt of written notice of such breach from Advertiser.
Trademark License – Advertiser hereby grants Company and its Service Providers a non-exclusive, royalty-free, worldwide right and license to use the Advertiser Trademarks in connection with the Services. For purposes of this Agreement, “Advertiser Trademarks” mean those trademarks, trade names, service marks, slogans, designs, advertising, labels, logos, and other trade-identifying symbols as are or have been developed and used Advertiser or any of its subsidiaries or affiliate companies anywhere in the world. Nothing in this Agreement gives Advertiser any right to use the trademarks, trade names, service marks, slogans, designs, distinctive advertising, labels, logos, and other trade-identifying symbols as are or have been developed and used by Company or any of its subsidiaries or affiliate companies anywhere in the world, including, without limitation, in any advertisements, sales promotion, public announcements or press releases, without Company’s prior written approval in each instance.
Reservation of Rights – Company, in its sole discretion, may, at any time and for any reason, without notice, modify or remove or refuse to publish any Advertiser Materials from or on any platform over which the Services are distributed. Without limiting the foregoing, Company reserves the right to access, read, preserve, and disclose any Advertiser Materials or other information as Company reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Company, its users and the public.
End User Information – Any data collected from or about end users of the Services or related to the Services shall be the property of Company. Advertiser shall have no rights in such information by virtue of this Agreement.
Advertiser Representations and Warranties – Advertiser represents and warrants that (i) the Advertiser Materials, Advertiser Trademarks, all website links that Advertiser requests that Company and its Service Provider(s) include on a website or other Services developed under this Agreement, and all information (including, but not limited to, name, address and telephone number) furnished by Advertiser in connection with an Order: (a) are original, accurate, and complete, and shall comply with all applicable laws, rules, and regulations; (b) are not libelous or defamatory and do not violate or infringe the personal or proprietary rights of any person or other entity (including without limitation any patent, copyright, trademark, trade secret or other intellectual privacy or publicity); and (c) do not contain viruses or any other contaminants, or disabling devices including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, damage or disable the network or software of Company, its Service Provider(s) or any Vendors, or any of their respective affiliates or Advertisers; (ii) it will comply with all federal, state and local laws and regulations applicable to the performance of its obligations hereunder and will obtain all applicable permits and licenses required of it in connection with its obligations hereunder; and (iii) it will avoid deceptive, misleading or unethical practices that could adversely affect the performance of Company’s obligations under this Agreement or, during the Term, damage the reputation of Company.
Indemnification – Advertiser agrees to defend, indemnify and hold harmless Company, its parent and affiliates, Service Provider(s), and each of their respective directors, officers, owners, employees, contractors, agents and assigns, from and against any claim, loss, demand, cause of action, debt or liability, including reasonable attorneys’ fees resulting from a third-party claim arising out of: (i) any Advertiser Materials provided by Advertiser for use by Company and/or its Service Provider(s) under this Agreement, including, without limitation, any claim that any such Advertiser Materials are libelous or defamatory or violate or infringe the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any rights of privacy or publicity; (ii) the breach or alleged breach of any representation or warranty made by Advertiser in this Agreement, or (iii) any claim relating to Advertiser’s products or services.
Disclaimers – Except as expressly set forth in this agreement, neither party makes any representations or warranties, express or implied, including without limitation any implied warranty of merchantability, fitness for a particular purpose or non-infringement, and the services are provided “as is” and “with all faults.” Company, its service provider and any vendors shall not have any liability or responsibility to Advertiser or any other person with respect to any claims arising out of or in connection with any Advertiser materials or other material displayed on Advertiser’s website(s) or the failure to display any such materials on Company's website(s). Company does not represent or warrant that any services, ads, or other material will be displayed on any Company websites without interruption or error.
Limitation of Liability – EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS PURSUANT TO SECTION 19 HEREIN, NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY, FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS PURSUANT TO SECTION 6 HEREIN, THE ENTIRE LIABILITY OF EACH PARTY FOR BREACH OF THIS AGREEMENT AND ANY LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT ADVERTISER HAS PAID OR OWES COMPANY PURSUANT TO THE APPLICABLE RATES HEREIN DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM OR, IF TWELVE (12) MONTHS HAS NOT YET ELAPSED AN AMOUNT EQUAL TO THE AVERAGE PAID PER MONTH FOR THE MONTHS THAT HAVE ELAPSED MULTIPLIED BY TWELVE (12). THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION ARE BARGAINED FOR EXCHANGE RELATING TO THE FEES TO BE PAID FOR THE PARTIES' RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 6 LIMITATION OF LIABILITY SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Force Majeure – Any delay in or failure of performance by Company will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of Company, including, but not limited to, public emergency or necessity, restrictions imposed by law, acts of God, war, riot, strikes, power outages, or failures of the Internet.
Modifications to this Agreement – Company reserves the right to amend or revise the terms of any Order and/or this Agreement (including the Order) at any time upon thirty (30) days after written notice to Advertiser. If such amendments or revisions are to material terms of this Agreement and are not acceptable to Advertiser, Advertiser may cancel this Agreement without penalty or liability by providing written notice to Company within such thirty (30) day period.
Intellectual Property Rights – Each Party will retain all right, title, and interest in and to all intellectual property rights (including, but not limited to, copyright and trademark rights) embodied in or associated with all materials, data, deliverables provided by it to the other Party hereunder (if any) pursuant to this Agreement. Advertiser grants to Company a worldwide, non-exclusive, royalty-free license (with the right to sublicense to its Service Provider(s) and/or such Service Provider’s Vendors) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute any all drawings, pictures, slogans, text, audio, video, or other content furnished by or on behalf of Advertiser under the applicable Order (collectively, “Advertiser Materials”) in the media and via the distribution methods expressly contemplated in the applicable Order. Company may modify or adapt the Advertiser Materials to the extent necessary to transmit, display or distribute it over computer networks and in various media and/or make changes to Advertiser Materials to the extent necessary to provide the Services and to conform and adapt the Advertiser Materials to any requirements or limitations of any networks, devices, services or media. Advertiser acknowledges and agrees that Company may use Advertiser’s results of Services in Company testimonials, videos and other advertisements that publicize Company services.
Governing Law/Jurisdiction – This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Venue shall be in the federal or state courts located in the County of Erie, NY.
Successors & Assigns – This Agreement shall be binding upon and shall inure to the benefit of each of the Parties hereto and their respective successors and permitted assigns. Neither party shall assign this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld or delayed except that either Party may assign this Agreement (in its entirety); (i) to an Affiliate; (ii) pursuant to a corporate reorganization; and (iii) in the event of a sale of substantially all of the Party’s assets, shares, equity interests or a change in control or a merger or other acquisition without the prior written consent of the other Party. Notwithstanding the foregoing, should an assignment occur as a result of an event related to subparagraph (i), (ii), or (iii), a Party may terminate the Agreement upon sixty (60) days’ prior written notice if it has a reasonable business basis to object to the assignment.
Severability – If any provision of this Agreement, or portion thereof, shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
Relationship of the Parties – The Parties agree that they are independent contractors and that this Agreement and relations between Company and Company hereby established does not constitute a joint venture, agency or contract of employment between them, or any other similar relationship. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other.
Waiver – No failure or delay in exercising any right hereunder will operate as a waiver thereof or will any partial exercise of any right or power hereunder preclude further exercise. Any waivers or amendments shall be effective only if made in writing and signed by an authorized representative of the Parties hereto.
Entire Agreement – This Agreement together with their Appendices, constitute the entire agreement, arrangement, and understanding between the Parties. This Agreement supersedes any prior agreements, arrangements, or understanding on this subject matter. This Agreement may not be changed orally, but only in writing, signed by the Parties.

Appendix 1 to the Terms and Conditions

Digital Marketing Services

This Appendix 1 modifies and is incorporated in full into those certain Terms and Conditions between Company and Customer (as those terms are defined therein) to which this Appendix 1 is attached. All capitalized terms used but not defined in this Appendix 1 shall have the meaning in the Terms and Conditions.

Search Engine Optimization. Pursuant to an Order, Company may provide certain Digital Marketing Services optimizing certain search engine results the SEO Service Domain Name as directed by the Order (the “SEO Service”). The SEO Service does not include paid search engine placements offered by certain search engine companies. Customer acknowledges that the SEO Service is aimed towards optimizing the selected SEO Service Domain Name which will direct a user to specified Customer Website, regardless of whether that website was created pursuant to this Order. Customer acknowledges that Company will use reasonable efforts to perform the SEO Service but that no guarantee can be made that the Customer Website’s search ranking position will be maintained or optimized. In addition, Customer acknowledges that there are risks associated with search engine optimization methods generally, including some methods that may be employed by Company in performing the SEO Service, which could damage search ranking position and Company will have no liability in such case or for any other unfavorable ranking results whether as a result of the SEO Service or otherwise. Search engine companies change their ranking algorithms periodically, and as such, search ranking positions will fluctuate and cannot be guaranteed by Company. Any other changes to search engine sites that cause unfavorable ranking results are out of Company’s control and Company shall not be held responsible for such actions or occurrences. The search ranking position shall have no effect on the obligation of Customer to pay the full amount for any SEO Service. Company reserves the right to change optimized Company-acquired SEO Service Domain Names during the life of the service at Company's sole discretion. Company may make updates, changes or enhancements to Customer Website. Customer acknowledges no updates, changes or enhancements to Customer's websites by Company, even those that may be deemed by Customer and/or Company to have been made in error, shall affect the obligation of Customer to pay the full amount for the SEO Service. Should Company acknowledge any change was made in error, the only obligation of Company with respect to any such error is to correct such error after notice of such error is received by Company from Customer. Under no circumstances will Company be responsible or liable, financially or otherwise, for any impact of Company initiated changes including errors, other than as stated in the aforementioned sentence.
Search Engine Marketing. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of creation and placement of ads on one or more Partner Properties (“SEM”). Customer shall defend, indemnify, and hold harmless Company, its affiliates, employees, directors, officers and agents from any and all claims, liabilities, and/or damages (including, but not limited to reasonable attorneys. fees and costs) that arise from or relate to any advertisements created by Company in its provision of SEM Services. Due to the variable results of SEM, product fulfillment may vary from targeted levels by as much as 50% in any given month of the term of the applicable Order. In order to compensate for this variance or for any other reason, Company may, in its sole discretion, adjust the campaign fulfillment duration of an Order to match delivered fulfillment levels on a monthly basis. Adjustment of campaign duration shall not affect the obligation of Customer to pay the full amount noted on the Order. In the event that Company performs any SEM pursuant to the Services performed hereunder and there is a credit to Customer’s account of less than $10.00 after such SEM has been performed and this Agreement has been terminated, Company shall not be required to perform any SEM to offset such balance or to refund Customer the cash equivalent thereof. As part of an SEM order, the Customer may choose to have a remote call forwarding (“RCF”) number included as an additional feature. Customer will be required to sign an RCF consent form at the time the SEM order is placed with Company. By signing the RCF consent form, the Customer acknowledges and accepts all related RCF terms and conditions as stated in Item 14 “Local Track – RCF” of this Schedule 2.
Websites and E-Commerce. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of creation and maintenance of a website or mobile website on Customer's behalf (such website shall be considered for purposes of these Terms and Conditions, a “Customer Website”). Company reserves the right in its sole discretion to refuse to sell and design Customer Websites to a Customer who requests a site which Company deems is, including but not limited to, unlawful or inappropriate, constitutes harassment, racism, violence, obscenity, harmful intent, spamming, contains unacceptable adult content, commits a criminal offence, or commits privacy or copyright infringement. Customer acknowledges and agrees that it is solely responsible for ensuring that any Customer Websites comply with Applicable Laws, and for obtaining any Consents required from consumers using the Customer Websites; provided, that Company shall work in good faith to take commercially reasonable efforts to cooperate with Customer on any changes Customer feels are required to be so compliant, subject to additional fees to be mutually discussed and agreed-to for such cooperation. Subject to the terms defined within the Purchase Order and related fees as defined in the Agreement, Customer may request the transfer of such Customer Website into Customer’s possession. Company shall work in good faith to transfer such Customer Website as per Customer’s request, except for instances whereby components may not be transferred due to limitations which may arise as the result of existing Third-Party Services terms, ownership-related restrictions as defined in Section 4 of the Agreement, or restrictions pursuant to Applicable Laws. Customer may use the Digital Advertising purchased for the creation and maintenance of an interactive online store (a “Store”) for the sale of goods and services. Customer acknowledges and agrees that Customer will be solely responsible for all goods and services offered at and sold through the Store, including any claim, suit, penalty, tax, fine, penalty, or tariff arising and/or any failure to comply with any Applicable Laws, taxes, and tariffs, from the Customer’s exercise of Internet electronic commerce through the Customer Website and/or Store. In conjunction with the creation of such a Store, the Customer may choose to add an application to facilitate financial transactions including payment processing (a “Payment Processing Platform”). Customer acknowledges that Company shall only implement a Payment Processing Platform connection at Customer’s direction, that the Payment Processing Platform is an application provided by a third party and that Company has no liabilities or responsibilities for any interactions between the Customer and the Payment Processing Platform provider or the transactions that may result from the use of such Payment Processing Platform. Customer is responsible for compliance with the terms of any third-party applications added to the Customer Website by Company.
Social Media Services. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of creating advertisements on social networking sites (the “SMM Service”) on Customer's behalf. Customer authorizes Company to act on Customer's behalf in communications with social networking sites, and in the creation and modification of any content (“Customer Content”). Customer retains all rights to any Customer Content supplied to Company to submit, post or display on or through the SMM Service. Customer represents and warrants that all Customer Content submitted in connection with this SMM Service order will comply with all the terms of service of any applicable Partner Property and that it has collected any information pertaining to its customer in compliance with Applicable Law. Customer acknowledges that the SMM Service does not guarantee attainment of specific performance metric thresholds including but not limited to numbers of "fans", "likes", "followers", leads generated, and so forth. Due to the variable results of SMM, product fulfillment may vary from targeted levels by as much as 50% in any given month of the term of the Order. In order to compensate for this variance or for any other reason, Company may, in its sole discretion, adjust the campaign fulfillment duration of an Order to match delivered fulfillment levels on a monthly basis. Adjustment of campaign duration shall not affect the obligation of Customer to pay the full amount noted on the Order. In the event that Company performs any SMM pursuant to the Services performed hereunder and there is a credit to Customer’s account of less than $10.00 after such SMM has been performed and this Agreement has been terminated, Company shall not be required to perform any SMM to offset such balance or to refund Customer the cash equivalent thereof. Customer indemnifies and holds Company harmless for all claims related to any SMM activities facilitated by Company including but not limited to contests and promotions, social conversation creation and feedback management.
Reputation Management. Pursuant to the applicable Order, Customer may request that Company provide Digital Advertising in the form of an automatic system that continuously monitors sources, collects and analyzes data and reports on how the Customer's business is perceived by its customers (“Reputation Management”). Customer is responsible for ensuring Company has accurate business listing information for any business locations utilizing Reputation Management services. If the Customer has purchased Advanced Reputation Management, the following additional terms apply; Company may perform services designed to manage and respond to reputation-related events on third-party websites. Customer acknowledges that Reputation Management products do not guarantee attainment of specific performance metric thresholds including but not limited to number of reviews, average review rating, number of mentions, etc. Customer shall either (a) provide Company with specific responses to reviews or (b) authorize Company to respond to reviews by third parties in relation to Customer’s business; provided, that Company may provide Customer an opportunity to review any such response in Company’s sole discretion but shall not be obligated to do so; provided, further, that in either case of the foregoing (a) or (b), and regardless of whether Customer has reviewed such responses, Company is not responsible for the content of any such responses made in connection with the Services provided to Customer, or for any subsequent responses from consumers as a result. Customer shall indemnify and hold Company harmless for any responses made in connection with the fulfillment of services. In providing the Reputation Management, Company partners with VendAsta Technologies Inc. Customer acknowledges and agrees that, in connection with its purchase and use of, Reputation Management, Customer hereby agrees that in addition to these Terms and Conditions, Customer agrees to be bound by all the terms and conditions located at https://www.vendasta.com/terms/terms-of-service/, as may be amended from time to time.
Email Marketing and Advertising. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of email marketing services (the “Email Marketing Services”). Company makes no warranties or representations regarding the success of the Email Marketing Services. Customer shall provide Company with any e-mail addresses of and/or suppression lists containing customers for whom they have not received the required Consents (including any customers who have unsubscribed pursuant to the CAN-SPAM Act (defined below)) and represents and warrants that any email distribution lists provided by Company are otherwise in compliance with the Assault of Non-Solicited Pornography and Marketing Act of 2003, and all amendments thereto (the “CAN-SPAM Act”). Customer shall provide Company with any language to be included in any emails to ensure compliance with all Applicable Laws (including the CAN-SPAM Act). Company shall not electronically distribute any email marketing material without prior written approval of Customer.
Local Track - RCF. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of establishing and maintaining telephone numbers (the “Numbers”) or domain names (the “URLs”) to be used to measure incoming calls and website usage resulting from the Customer's advertising campaigns (the “Forwarding Services”). Upon any person's dialing the Numbers during the Term, the call will be forwarded to one or more phone numbers that Customer provides to Company, as indicated on the Order (the “Destination Phone Number(s)”). Upon any person's navigation to the URLs during the Term, the user will be directed to a version of one or more URLs provided by Customer to Company, as indicated on the Order (the “Destination URL(s)”) and viewed through a proxy. The Customer represents and warrants to Company that the Destination Phone Number(s) & Destination URL(s) indicated above are the correct primary phone numbers and domain names used by the Customer in its business. Customer acknowledges that Company is not responsible for the use of the Numbers or URLs in any advertising campaigns not provided by Company. Customer acknowledges that upon, completion of the Term or cancellation at Company's discretion as noted above, the Numbers and URLs associated to the applicable Order will no longer be functional as outlined above and Company bears no responsibility related to the cessation of the function of said URLs and /or Numbers. Customer acknowledges and understands that any telephone conversation as a result of the use of the Numbers may be recorded, and that the Voice Recording Service is intended to make an electronic recording of all telephone calls made to the Numbers for purposes of "quality assurance" and "customer service," (the “Permitted Purposes”) only when a person (the “Caller”) makes a call to Customer through the Numbers. Upon calling Customer, such Caller will be automatically advised using a recorded message that each call is subject to recording and monitoring for the Permitted Purposes (a “Call Prompt Message”) prior to the connection of the telephone call to Customer. As a condition of usage, Customer expressly agrees and acknowledges that Applicable Law may require that Customer provide notice to and/or receive express Consent from, in writing or otherwise, all agents (including employees), independent contractors, and /or other persons who are on the receiving end of the recorded telephone calls (the “Call Receivers”). Customer agrees that Customer is solely responsible for providing and/or obtaining all Consents relating to Call Receivers, as required by Applicable Law. Customer may be required from time to time to certify in writing to Company, and update this certification on a monthly basis, that all Call Receivers have been notified, have provided requisite Consents and have given permission to have their voice, identity, and call content recorded, monitored, stored, and divulged. Customer agrees that Company has no responsibility to ensure that the recording, monitoring, storing, and/or divulging telephone calls, or the content of the Call Prompt Message itself, complies with Applicable Laws. Customer grants specific permission to Company to administer, monitor, use and access Customer recorded calls as Customer's agent. Customer shall defend, indemnify, and hold harmless Company, its affiliates, employees, directors, officers and agents from any and all claims, liabilities, and/or damages (including, but not limited to reasonable attorneys. fees and costs) that arise from or relate to Customer use or misuse of the Forwarding Services. Customer shall not use the Forwarding Services to intimidate, harass, or otherwise violate the privacy or other rights of a Caller and a Call Receiver. If Company learns about any alleged misuse of the Forwarding Services, Company reserves the right to terminate Customer’s use of the Forwarding Services without prior written notice and without liability. Company may decide that the Forwarding Services will not be used to record the telephone calls to businesses that are deemed by Company to be in sensitive heading categories where recording of such calls may inadvertently expose sensitive or legally protected information.
Customer Relationship Management (“CRM”). Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of access to a platform for customer management that contains software, tools, and applications designed to allow Customer to capture leads and convert them to paying customers through automated marketing (the “CRM Platform”). Company will provide the CRM Platform in conjunction with Signpost, Inc. (“Signpost”).
1. Customer understands and agrees that Customer shall not (and shall cause its employees and representatives authorized to access the CRM Platform not to) (a) modify, translate, reverse engineer, decompile, disassemble, create derivative works of or otherwise seek access to the source code of the CRM Platform; (b) disclose, provide, distribute, license, sublicense, sell, assign or transfer the CRM Platform or Signpost’s user guides and other end user documentation for the applicable CRM Platform, as may be updated by Signpost from time to time (the “Documentation”), in whole or in part, to any party, or allow any party to in any way access or utilize the CRM Platform and Documentation other than as expressly provided herein; (c) access or use the CRM Platform or Documentation to knowingly infringe on, violate, dilute, or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (d) access or use the CRM Platform or Documentation to knowingly violate any Applicable Laws (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions implemented by the Office of Foreign Assets Control), unfair competition, anti-discrimination and/or false advertising); (e) access or use the CRM Platform to knowingly store defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (f) access or use the CRM Platform to knowingly store obscene, pornographic or indecent data in violation of Applicable Law; (g) access or use the CRM Platform to knowingly introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, other malicious or harmful code; or (h) remove from the CRM Platform or Documentation any language or designation indicating the confidential nature thereof or the proprietary rights or trademarks of Signpost. Customer understands and agrees that Customer is responsible for acquiring valid Consent from the recipient of any SMS or email marketing communications required by Applicable Law.
2. Customer hereby permits Signpost to collect online data from the Customer and through the CRM Platform regarding the Customer’s customers (the “Customer Data”), provided that Customer Data will not be used for any other purpose other than to improve the CRM Platform, and provide related support services to Customer, or as otherwise directed by Customer, including to respond to Customer’s request for assistance with any technical problems and/or queries related to the use of the CRM Platform, and provided further that Signpost shall also have the right to use or disclose Customer Data in a format that does not personally identify the identity of Company or any Customers, including as aggregated de-identified data. Customer acknowledges that it is the sender of emails in connection with the CRM Platform and is obligated to follow all legal requirements applicable to the sending of emails under the CAN-SPAM Act, including but not limited to the prohibition against sending unsolicited emails to person with whom Customer does not have a business relationship or who have not requested (opted-in) to Customer’s emails. Customer also agrees to only send permission-based emails, meaning that all recipients must have opted-in to receive email communications from Customer. Customer agrees that any and all emails it sends will include all information required by the CAN-SPAM Act. Customer shall not upload or incorporate into customer lists, or otherwise provide to Signpost any protected health information of any kind within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA). Customer also agrees that individual Customer subscriptions are for named Customers only and cannot be shared, transferred, or used by more than one Customer. Customer grants to Signpost a royalty-free, worldwide, irrevocable, perpetual, sub licensable, transferable license to use and incorporate in any manner whatsoever, including into the CRM Platform, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by such Customer relating to the operation of the CRM Platform. Signpost makes no warranties, representations or commitments regarding the CRM Platform. Customer agrees and acknowledges that Signpost is the owner of all right, title, and interest in and to the CRM Platform, documentation, and all intellectual property therein. At the end of the term of this this Purchase Order Customer agrees to discontinue use and destroy or return all copies of the CRM Platform.
Display Advertising. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of the creation and display of ads (“Ads”) in partnership with Simpli.fi Holdings, Inc. (“Simpli.fi”), on designated third-party websites within the Simpli.fi network of contracted sites. Ads may consist of one or many of the following placement strategies; site retargeting, search retargeting, contextual retargeting, and addressable geofencing (“AG”). Due to the variable nature of Digital Advertising and despite the best efforts of Company, product fulfillment may vary from targeted levels, in some cases substantially, in any given month during the Term of the Purchase Order. Due to this variance, fulfillment may be adjusted to match agreed-upon fulfillment levels on a monthly basis. Adjustment of duration shall not affect the obligation of Customer to pay the full amount noted on the applicable Order. Customer shall be responsible for providing Company with Customer Content for the purpose of creating such Ads, including ad copy specifying promotional offer details and promotional period duration. Company may also create additional content taken from Customer’s Website for the purposes of creating Ads. Prior to the placement of Ads, Company shall provide previews for Customer’s review and acceptance. Failure of Customer to provide acceptance shall in no way limit Customer’s responsibility for payment of the advertising. Thirty (30) days prior to the expiration of an Ad, Company will contact the Customer to obtain new Customer Content, or for permission to extend the duration of the existing Ad. In the event an Ad expires without a response from the Customer, Company may in its sole discretion continue to run the existing Ad until such time as Customer provides new Customer Content, or provides approval to extend the duration of the previous Ad. Customer acknowledges that the Ads utilize a platform that bids on and purchases ads on or through third-party platforms, which third-party platforms may be affected by third-party systems and that Company does not guarantee delivery of the Ads at any level. Customer shall (i) abide by all Applicable Laws, including those related to advertising, data privacy, and the transmission of technical or personal data, and all industry self-regulations and principles issued by the DAA, NAI or any other applicable industry group, as they may be amended from time to time. Customer represents and warrants that it has obtained all necessary rights and licenses from (a) in the case of third-party data, third-party providers of addresses provided by such party and (b) for first-party data, from users for provision or collection of their addresses provided by such party, each of (a) and (b) to enable Company to use the addresses for the purposes of providing the Services and AG to Customer in accordance with this Agreement. Under no circumstances shall Customer (a) provide to Company any personal information, personally identifiable information, EU Personal Data (as defined in the GDPR), or information capable of identifying a particular individual in the EU, (b) provide the Services to Advertisers that are not based in the United States, or (c) use the Services to target Ads to users located outside of the United States.
Yelp. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of the creation of profile pages and related paid advertisements (the “CPC Program”) in conjunction with Yelp, Inc. (“Yelp”). Customer hereby agrees that in addition to the terms set forth herein, Customer agrees to be bound by all the terms and conditions located at https://terms.yelp.com/tos/en_us/20200101_en_us/, as may be amended from time to time. Customer shall be responsible for providing certain Customer Content for the purpose of creating profile pages. Customer represents and warrants that all Customer Content submitted in connection with any CPC Program will comply with all Yelp’s terms of service. Customer acknowledges that CPC Program products do not guarantee attainment of specific performance metric thresholds including but not limited to numbers of "impressions", "clicks",” views”, "reviews", leads generated, and so forth. Customer also acknowledges that end users have the right and ability to post reviews, subject to Yelp’s terms of service, which may be either positive or negative in subject matter and tone, as it related to their interaction with or opinion of Customer’s business. Customer indemnifies and holds Company harmless for any end user posted reviews, regardless of subject matter or tone, in perpetuity. With regards to CPC Program fulfillment, due to the variable nature of Digital Advertising and despite the best efforts of the Company, fulfillment may vary from targeted levels, in some cases substantially, in any given month during the Term of the applicable Order. Due to this variance, CPC Program fulfillment duration of the applicable Order may be adjusted to match agreed-upon fulfillment levels on a monthly basis. Adjustment of CPC Program duration shall not affect the obligation of Customer to pay the full amount noted on the Purchase Order. In the event that Company performs any CPC Program pursuant to the Services performed hereunder and there is a credit to Customer's account of less than $10.00 after such CPC Program has been performed and terminated, Company shall not be required to perform any CPC Program to offset such balance or to refund Customer the cash equivalent thereof. As part of a Listing Optimization order, the Customer may choose to have an RCF number included as an additional feature. By selecting an RFC number on an Order Customer consents to all related RCF terms and conditions as stated in Section 7 of this Appendix I (Local Track – RCF) of this Agreement.
Domains. Pursuant to an Order, Company may purchase or otherwise acquire one or more URLs for its use in providing the Digital Marketing Services (the “Domain Names”). Such Domain Names may include references to Customer and its business, including trademarks owned by the Customer. Customer hereby grants Company a royalty-free, non-exclusive, non-revocable, transferrable worldwide license for the use of any such trademarks in such Domain Names and Customer acknowledges that Company will own all right, title and interest in such Domain Names during the term of and after the expiration or termination of this Agreement. Subject to the terms defined within the Purchase Order and related fees as defined in the Agreement, Customer may request the transfer of all right, title and interest in such Domain Names into Customer’s possession. Company shall work in good faith to transfer Domain Names as per Customer’s request, except for instances whereby Domain Names may not be transferred due to limitations which may arise as the result of existing Third-Party Services terms, ownership-related restrictions as defined in Section 4 of the Agreement, or restrictions pursuant to Applicable Laws. Further information related to URL Registration can be found at https://www.icann.org/resources/pages/registrars/consensus-policies-en. URL registrar information may be found at https://www.whois.com.
Videos. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of the creation of promotional/informational videos (the “Product Offerings”) in conjunction with Spectrio, LLC. (“Spectrio”).
1. Customer hereby acknowledges and accepts that Spectrio owns all right, title, and interest (including patent, copyright, trademarks, trade secrets and other proprietary or intellectual property rights) (“IP”) in and to (a) the Product Offerings, including video files, audio files, and similar content developed or licensed by Spectrio, (b) IP that is owned, acquired or developed by Spectrio, in each case without use of any Confidential Information of Customer; (c) IP that is licensed, leased or otherwise obtained by Spectrio from a third party (other than Partner or End Users), and (d) any modifications, updates, upgrades, enhancements or derivative works to the items listed in subsections (a) and (c) (collectively, “Spectrio IP”).
2. Except for the rights and licenses granted to Spectrio pursuant to this Agreement, as between Spectrio and Company, Company shall own all right, title and interest (including IP) in and to (a) any content developed by Company and without reference to any Spectrio IP or any Confidential Information of Spectrio, (b) any content acquired or licensed by Company from a third party (excluding Spectrio); (c) trademarks of Company; and (d) any modifications, updates, upgrades, enhancements or derivative works to the items listed in subsections (a) through (c) (“Company IP”).
3. Except for the rights and licenses granted to Spectrio and Company, each Customer shall own all right, title and interest (including IP) in and to (a) any content developed or licensed by Customer from a third party (excluding Spectrio or Company); (b) the trademarks of Customer; and (c) any modifications, updates, upgrades, enhancements or derivative works to the items listed in subsections (a) through (b) (“Customer IP”).
4. Customer hereby grants to Spectrio and Company a right and license to use, copy, distribute, perform, display, modify and create derivative works of any Customer IP in connection with and for the limited purpose of providing the Digital Marketing Services to the Customer.
5. Except for the rights and licenses granted to Spectrio and Company, and excluding any Spectrio and Company IP, Company shall own all right, title and interest (including IP) in and to the content or deliverables specifically developed by Spectrio for Company (“Video Deliverables”). Customer acknowledges and agrees not to extract Spectrio or Company IP from the Video Deliverables for use separately therefrom.

Other Services. From time to time, Customer may contract with Company pursuant to an Order for additional Digital Marketing Services or related Services not otherwise described herein (“Additional Services”). Any Additional Services remain subject to the Terms and Conditions applicable to all Services Company provides, including with respect to Customer’s obligation to ultimately ensure compliance with all Applicable Laws (subject to Company performing its Services in accordance with the Applicable Laws applicable to Company’s business).

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