Client hereby engages Netsertive, Inc. (“Netsertive”) to provide digital marketing services (“Services”) as described in one or more Quotes (“Quote”). The terms and conditions contained in this Marketing Services Agreement (“Agreement”) shall be attached to the Quote. If there is any conflict between the provisions of this Agreement and any Quote, the provisions of this Agreement shall control. Services will utilize Netsertive’s proprietary technology, service networks and skilled marketing professionals. Services are provided only for the benefit of Client. Client may not resell or provide the Services to or for the benefit of any other third party or permit any third party to use the Services. At any time during the term of this Agreement, Client may request future additions or modifications to the Services (each a “Change”). No Change shall be considered as an addition or modification to the Services, except pursuant to a duly executed successor Quote that is agreed to by the parties. The current version of the terms and conditions can be found online at https://www.netsertive.com/marketing-services-agreement-terms/
2.1 In exchange for access to the Services, Client shall pay Netsertive the agreed upon fees set forth in the applicable Quote (the “Service Fees”), which Service Fees will be paid as provided below in Section 2.2. The Advertising Funds disclosed on Client’s Quote are calculated using Netsertive’s internal record keeping system as it relates to third party advertising costs incurred on Client’s behalf. The Advertising Funds and the Technology Access Fee, which together comprise the Service Fees, are in consideration of the Services. Client understands that the monthly Service Fees do not include any third party digital advertising spend. Client is completely financially responsible for all third party digital advertising spend. Client hereby authorizes Netsertive to purchase third party digital advertising services on Client’s behalf.
2.2 Service Fees will be invoiced upon execution of the Quote and then monthly in advance thereafter. All payments shall be made in United States dollars and may be further specified on the Quote. Past-due payments shall be subject to late payment charges equal to the lesser of (a) one percent (1%) per month or the maximum rate allowed by law. In addition, if payment is past due, Netsertive may suspend provision of the Services until Client’s account is current.
2.3 Client is responsible for all applicable taxes incurred in connection with this Agreement, including all sales and use taxes (but excluding any tax based solely on the income of Netsertive).
3.1 Each party hereby represents and warrants that (a) the execution and delivery of this Agreement by such party has been authorized by all requisite company action of such party, (ii) this Agreement is a valid and binding obligation of such party, enforceable in accordance with its terms, subject to laws of general applicability relating to bankruptcy, insolvency and the relief of debtors, and (iii) such party is under no contractual or other obligation or restriction that is inconsistent with its execution or performance of this Agreement.
3.2 Netsertive shall perform the Services in a professional, competent and workmanlike manner in accordance with standards of quality prevailing in the industry.
3.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NETSERTIVE MAKES NO WARRANTIES, EXPRESS OR IMPLIED AND ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.
3.4 Netsertive agrees to indemnify, defend and hold harmless Client and its affiliates against any losses, damages, claims, fines, penalties and expenses (including reasonable attorney’s fees) that arise out of or result from a third party claim relating to a material breach of this Agreement by Netsertive.
3.5 Client agrees to indemnify, defend and hold harmless Netsertive and its affiliates against any losses, damages, claims, fines, penalties and expenses (including reasonable attorney’s fees) that arise out of or result from a third party claim relating to a material breach of this Agreement by Client, use of content provided by or in collaboration with Client or any action taken by Netsertive at Client’s direction.
Client may identify certain retailers, resellers, distributors or dealers (hereinafter referred to as “Channel Partners”) to participate in Client’s media campaign and receive certain Services from Netsertive. The applicable Services Schedule will provide the requirements for Channel Partners to be eligible to participate in such media campaigns and receive Services, which requirements may include the execution and delivery by a Channel Partner of a Quote in form and substance satisfactory to Netsertive (an eligible Channel Partner who has met such requirements is sometimes referred to herein as a “Qualified Channel Partner”).
5.1 Client grants all rights of use and is solely responsible for the content of all advertisements and marketing programs delivered in connection with the Services. Client agrees to comply with all applicable laws in connection with the use and delivery of such content. In no event shall Netsertive be responsible for the use of any content provided by Client or its Qualified Channel Partners or content otherwise used by Client or its Qualified Channel Partners.
5.2 Client shall provide trademark authorizations for Netsertive with certain required content ad networks such as Google, Inc. and others. Client will submit such authorizations as may be required for Netsertive to perform the Services.
5.3 If the Services include call tracking, monitoring and recording services, Client hereby consents to any and all call recording, tracking and monitoring provided by Netsertive (or its agents, employees or affiliates) hereunder. Client acknowledges that it is responsible for notifying and obtaining consent to any call recording, tracking or monitoring from all of its agents, employees, independent contractors, or other third parties who may be recorded or monitored in connection with the Services. Client agrees to provide and/or obtain all notices, consents and permissions related to call recording, tracking, and monitoring as may be required by applicable laws or regulations. Client is responsible for providing Netsertive timely and accurate information. In the event Client does not provide timely or accurate information to Netsertive, Client shall hold Netsertive harmless for any Services provided which are based on information that is not accurate or not provided to Netsertive in a timely manner.
Netsertive is an independent contractor, and nothing in this Agreement shall be construed to create or imply a joint venture, partnership or principal/agent relationship between Client and Netsertive. Except as otherwise specifically set forth herein, neither party shall have any right, powers or authority to act or create any obligations, express or implied, on behalf of or for the other party hereto.
The term of this Agreement shall commence on the date hereof and shall continue for the initial term listed on the Quote (the “Term”), unless sooner terminated pursuant to the terms hereof. Such Term shall automatically renew for successive Terms unless either party provides written notice of its intent to terminate within 60 days of the end of the then-current term. The Term during which individual Services will be provided will be set forth on the applicable Quote. Either party may terminate this Agreement or an applicable Services Schedule upon written notice (i) if the other party materially breaches any of its obligations hereunder and fails to cure such breach within 30 days of notice thereof, or (ii) if the other party makes a general assignment for the benefit of creditors, is subject to a voluntary petition for bankruptcy (or an involuntary petition for bankruptcy that is not vacated within 60 days), has a receiver appointed or is otherwise declared insolvent. The term of this agreement may be extended by Execution of Quotes under this Agreement and this Agreement shall survive through the completion of any and all Quotes and the terms thereof.
8.1 Each party agrees to maintain in confidence and use only as permitted in this Agreement all Confidential Information received from the other party. “Confidential Information” means all non-public business, technical, and financial information disclosed under this Agreement. The Confidential Information of Netsertive includes its technology, knowledge, expertise and algorithms used in connection with the Services. Netsertive shall have and retain exclusive ownership of all intellectual property rights in and to the Services and all associated technology, software, algorithms, methods, and techniques, including any intellectual property created in connection with the Services. Client shall not derive or attempt to derive the source code, source files, or any component or structure of software provided by Netsertive by reverse engineering, disassembly, decompilation or other means and shall not provide access to the Service to any third party. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; or (iii) is obtained by the receiving party from a third party who was not under any confidentiality obligations. Upon termination, each party shall promptly return or destroy all property in its possession belonging to the other party and return or destroy all materials containing Confidential Information.
8.2 In order to make continuous improvements to Netsertive products and services, respond to market forces on behalf of Client, and provide data analysis services, notwithstanding anything to the contrary herein, Netsertive shall have the irrevocable, perpetual, worldwide right and license to use, copy, modify, and distribute data created as a result of, or in connection with the Services provided hereunder, including aggregated datasets which may contain Client’s program data. Such data shall only be used as part of a larger collection of data and shall be anonymized such that it contains no Client attribution or identification. In addition, to the extent Client authorizes participation in a marketing campaign or receipt of Services by a Qualified Channel Partner, Client agrees that Netsertive shall have the right to provide to such Qualified Channel Partner information related to the Services provided to such Qualified Channel Partner.
In no event shall either party hereto be liable for any consequential, special, exemplary, incidental or punitive damages or for any lost profits arising under, related to or in connection with this Agreement. In addition, except for each party’s obligations under Section 3, neither party shall be liable to the other party hereunder for direct damages in excess of the total amount paid to Netsertive hereunder for the twelve month period prior to the date of any claim.
Neither party shall be held responsible for any delay or failure in performance of any part of this Agreement caused by circumstances beyond such party’s reasonable control, including, without limitation, fire, flood, strike, civil, governmental or military authority, act of God, strikes, labor difficulties, delays or failures caused by Internet outages or failures or Internet Service Providers, and acts or policies of third parties such as Google, Inc., Microsoft Corporation and others.
Neither party shall assign any right or obligation under this Agreement without the prior written consent of the other party hereto; provided, that any assignment to an affiliate of a party or in connection with the sale of all or substantially all of the assets or equity of a party (including by merger, consolidation or similar transaction) shall not require prior written consent.
For two years from the commencement date of this Agreement, each party agrees not to either directly or through others, solicit or attempt to solicit any employee (not including administrative or information technology personnel), of the other party to terminate his, her or its employment with such party; provided, that the foregoing will not prohibit (i) employing any such person who contacts a party on his or her own initiative and without any solicitation by such party, or as a result of general advertisements for employment not specifically directed towards employees of the other party, or (ii) soliciting or employing any such person through any recruiting.
The obligations of the parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement shall survive termination, cancellation or expiration of this Agreement, including, without limitation, Sections 3, 8, 9, and 12.
If any one or more provisions of this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.
All remedies available for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of one remedy shall not be deemed an election of such remedy to the exclusion of any other remedy.
Any notice provided for or concerning this Agreement shall be in writing and deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth on the signature pages hereto.
The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. This Agreement shall inure to the benefit of and bind the successors and assigns of the respective parties.
This Agreement may be executed in one or more counterparts, each of which when so executed shall be an original, but all of which shall constitute one and the same instrument.
This Agreement and all transactions under it shall be governed by the laws of the State of New North Carolina, excluding its choice of laws rules. The parties agree to the exclusive jurisdiction in the courts located in Wake County, North Carolina in connection with any dispute or claim arising out of or relating to this Agreement or the breach hereof.
This Agreement, together with any exhibits hereto, shall constitute the entire agreement between the parties with respect to the subject matter of this Agreement. To the extent of any discrepancy between the provisions of this Agreement and the Quote or any Change Order issued in connection with the performance of the Services, the Quote shall govern. This Agreement shall not be modified or rescinded, except by a writing signed by Netsertive and Client. The provisions of this Agreement supersede all contemporaneous oral agreements and all prior oral and written communications and understandings of the parties with respect to the subject matter of this Agreement.