Master Services Agreement

1. Engagement and Description of Services.

Client hereby engages Netsertive, Inc. (“Netsertive”) to provide various location marketing & digital marketing capabilities (“Services”) as further described in each schedule of services to be provided (“Schedule”), which may be added to this MSA by mutual agreement. Services will use Netsertive’s proprietary technology platform, various third-party advertising networks, other third-party integrated services and skilled marketing professionals. Services are provided only for the benefit of Client and may not be re-sold to, or provided for the benefit of any other third party, nor is any third party permitted to use the Services. At any time during the term of this MSA, Client may request additions or modifications to the Services by executing a new Schedule under this MSA. Netsertive may modify portions of this MSA from time to time, with advanced written notice to Client.

2. Fees and Billing.

2.1 In exchange for the Services, Client shall pay Netsertive the agreed upon fees (“Services Fees”) set forth in each Schedule under this MSA, which will be paid as provided below in Section 2.2. Services Fees under a given Schedule may include Managed Services Fees, Location Fees, or other fees as set forth in a given Schedule, as well as the agreed amounts for Client’s Advertising Network Budget. The Advertising Network Budget includes direct costs of advertising or similar direct third-party digital marketing network costs incurred in the delivery of Client’s Services and are planned in advance by Client and Netsertive, in order to allocate by location and by advertising channel. The planned Advertising Network Budget is calculated using Netsertive’s internal record keeping system as it relates to the third-party digital marketing network costs incurred on Client’s behalf.

In connection with the Services, Client hereby authorizes Netsertive to purchase third party digital advertising on Client’s behalf.

2.2 Services Fees and Client’s Advertising Network Budget will be invoiced upon execution of each applicable Schedule under this MSA and then monthly in advance thereafter. All payments shall be made in United States dollars. 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. If any payment is past due, Netsertive may suspend the Services until Client’s account is current.

2.3 Client is responsible for all applicable taxes incurred in connection with this MSA and its Schedules, including all sales and use taxes (but excluding any tax based solely on the income of Netsertive).

3. Representations, Warranties, and Indemnity.

3.1 Each party hereby represents and warrants that (a) the execution and delivery of this MSA 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 MSA.


3.3 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 MSA by Netsertive.

3.4 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 MSA by Client, use of content provided by or in collaboration with Client or any action taken by Netsertive at Client’s direction.

4. Compliance

4.1 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 additional Client Locations or content otherwise used by Client or its additional Client Locations.

4.2 Client shall provide all required trademark authorizations or similar authorizations for the use of Client’s brand and marks in various advertising channels, for Netsertive, with certain required advertising channels, including Google, Inc., Microsoft Corporation, and others. Client will submit
such authorizations as may be required for Netsertive to perform the Services.

4.3 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 and 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.

4.4 Client agrees to comply with and be bound by Netsertive’s Privacy Policy, which can be found at: https://www.netsertive.com/privacy-policy

5. Relationship of Parties.

Netsertive is an independent contractor, and nothing in this MSA 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.

6. Term and Termination.

The term of this MSA shall commence on the Effective Date hereof and shall continue for an initial term of 12 months (the “Term”), unless sooner terminated pursuant to the terms hereof. Such Term shall automatically renew for successive 12 month terms unless either party provides written notice of its intent to terminate within 60 days of the end of the then-current term. Any Schedule executed under this MSA shall automatically extend the term of the MSA, such that the MSA may not terminate if there is any then-active Schedule in effect. Either party may terminate this Agreement 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.

7. Confidential Information; Intellectual Property Rights.

7.1 Each party agrees to maintain in confidence and use only as permitted in this MSA all Confidential Information received from the other party. “Confidential Information” means all non-public business, technical, and financial information disclosed under this MSA and all of its Schedules, present and future. 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.

7.2 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.

8. Limitation of Liability.

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 MSA. 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.

9. Force Majeure.

Neither party shall be held responsible for any delay or failure in performance of any part of this MSA 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 of Internet Service Providers, and acts or policies of any advertising providers or other third parties which are relied upon to deliver Services.

10. Assignment.

Neither party shall assign any right or obligation under this MSA 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.

11. Non-Solicit.

During the Term and for two years from the termination date of this MSA, each party agrees not to either directly or through others, solicit, attempt to solicit, or otherwise induce any employee of the other party to terminate his or her employment with the other party; provided, that the foregoing will not prohibit employing any such person without any solicitation or inducement, as a result of general advertisements for employment not specifically directed toward employees of the other party, or an employee contacting the other party under conditions unrelated to the relationship and Services under this MSA.

12. Survival of Obligations.

The obligations of the parties under this MSA, which by their nature would continue beyond the termination of this MSA shall survive termination of this MSA, including, without limitation, Sections 3, 7, 8, and 11.

13. Severability.

If any one or more provisions of this MSA 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.

14. Remedies.

All remedies available for breach of this MSA 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.

15. Notices.

Any notice provided for or concerning this MSA 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.

16. Waiver.

The failure of either party to insist upon the performance of any of the terms and conditions of this MSA, 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 MSA shall inure to the benefit of and bind the successors and assigns of the respective parties.

17. Publicity; Use of Client Marks.

The parties will collaborate on joint marketing activities which may include a mutually agreed joint press release. During the Term, Client hereby grants Netsertive a nonexclusive license to use Client’s name, logo and brand marks as necessary to provide the Services hereunder and in general marketing materials.

18. Counterparts.

This MSA 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.

19. Choice of Law; Jurisdiction.

his MSA and all Schedules or other transactions under it shall be governed by the laws of the State of 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 MSA and all Schedules or other transactions under it, or the breach hereof.

20. Entire Agreement; Amendment.

This MSA, together with any exhibits, Schedules or attachments hereto, shall constitute the entire agreement between the parties with respect to the subject matter of this MSA. To the extent of any discrepancy between the provisions of this MSA and any Schedule executed in connection with the performance of the Services, the applicable Schedule shall govern. This MSA shall not be modified or rescinded, except by through mutual written consent of both parties. The provisions of this MSA 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 MSA.