1. Services.

(a) Netsertive, Inc. (“Netsertive”) will provide Client and if applicable, its Qualified Channel Partners (as defined below) certain digital marketing and promotional services as further described in one or more Quotes as mutually agreed by the parties from time to time, as modified by Change Orders from time to time (the “Services”). Services will utilize Netsertive’s proprietary technology, service networks and skilled marketing professionals. Further, in connection with the Services, Netsertive is authorized to determine how to allocate any Digital Marketing Funds on Client’s behalf to best drive performance and achievement of Client objectives as measured by Netsertive’s systems. Services are provided only for the benefit of Client and its Qualified Channel Partners, if any. Except as expressly permitted herein, 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. The terms and conditions set forth herein shall govern all such Services. In the event of any conflict between these terms and conditions and the Quote, the Quote will govern. At any time during the term of Services set forth in a Quote, 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 written change order mutually agreed by the parties (a “Change Order”). Any Change Order can be affected by email and counter-email or through other written communications.

(b) Client may identify certain retailers, resellers, distributors or dealers (“Channel Partners”) to participate in Client’s media campaign(s) and receive Services from Netsertive. The applicable Quote will provide the requirements for such Channel Partners to be eligible to participate in such media campaigns and receive Services hereunder, which requirements may include the execution and delivery by such Channel Partners of a Digital Marketing Agreement in form and substance satisfactory to Netsertive (an eligible channel partner who has met such requirements is referred to herein as a “Qualified Channel Partner”).

2. Fees and Payment.

(a) The fee for Services is as set forth on the Quote applicable thereto (such fee or fees (including any Digital Marketing Funds, as described below), collectively, the “Service Fee”). The Service Fee may include an amount of “Digital Marketing Funds”, as specified on the Quote. Netsertive will consult with Client to determine the appropriate level of Digital Marketing Funds based on the Client’s business objectives and factors such as, among other things, market share and the size of the applicable market. Digital Marketing Funds include management fees based on the quantity purchased and form a part of the Service Fee in consideration of Services provided hereunder.(b) Unless otherwise provided in the Quote, Service Fees will be invoiced upon execution of the Quote and then monthly in advance thereafter. All payments are nonrefundable and shall be made in United States Dollars. Invoices shall be payable within 30 days of receipt by Client. If any payment remains outstanding after the due date, Netsertive may suspend the Services until Client’s account is current. Further, past due payments will be subject to late charges of the lesser of (i) one percent (1%) per month or (ii) the maximum rate allowed by law. Client is responsible for taxes incurred in connection with the Services, including any sales and use taxes, but not any taxes payable on the net income of Netsertive. For clarity, Netsertive is solely responsible for its third party marketing costs and Client bears no risk related to these third party costs.

3. Term and Termination; Changes to Term.

(a) Subject to Section 3(c), these terms and conditions shall apply to Services ordered by Client pursuant to an Quote and shall continue in full force and effect while any Quote shall remain outstanding (as indicated on such Quote), including with respect to any Changes to such Quote agreed by the parties from time to time. Notwithstanding the foregoing, either party may terminate an Quote if the other party materially breaches the terms of such Quote or these terms and conditions and such breach is not cured within 30 days of receipt of written notice thereof; provided, that a non-breaching party hereunder may terminate an Quote immediately upon written notice if the material breach is not capable of cure.

(b) The following provisions and any provisions that by their term require that they survive termination of these terms and conditions shall survive any such termination: this Section 3, Section 4, Section 5(a), Section 6, the last sentence of Section 7, Section 9, Section 10, Section 11, Section 13 and Section 14.

(c) These terms and conditions may be modified or revised by Netsertive at any time and such revised or modified terms shall govern any Quotes then outstanding. Notwithstanding the foregoing, Netsertive shall provide written notice of any material change to these terms and conditions at least 30 days prior to instituting such change. A copy of the most recent terms and conditions can be found online at www.netsertive.com/promotions-terms-conditions/.

4. Confidentiality

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. Confidential Information shall not include any information that (a) is or becomes generally and publicly available other than as a result of a disclosure by the receiving party hereunder, (b) is or becomes known to the receiving party on a non-confidential basis from a third party who is under no obligation to keep such information confidential, (c) is independently developed by the receiving party without use of, or reliance on, the Confidential Information of the disclosing party hereunder, or (d) the receiving party can prove was known to it prior to disclosure by the disclosing party hereunder. In the event that a receiving party is, on the advice of its legal counsel, required by applicable law, regulation or legal process to disclose the Confidential Information of the disclosing party, the receiving party agrees to (i) notify the disclosing party promptly of such requirement and (ii) reasonably cooperate with the disclosing party, at the disclosing party’s expense, in obtaining a protective order or other appropriate remedy. If such protective order or other remedy is not obtained or compliance with this Agreement is not waived by the disclosing party, the receiving party shall furnish only such portion of the Confidential Information as it is advised by counsel it must disclose. Upon termination or at the request of a disclosing party, 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.

5. Proprietary Rights.

(a) 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, and shall not permit or cause any third party to, derive or attempt to derive the account configurations, 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 and shall not otherwise copy or use the design or “look and feel” of any software provided or used in connection with the Services. Client shall not, and shall not permit or cause any third party to, remove or export from the United States or allow the export or re-export of any Services or any direct product thereof, including technical data in violation of any applicable laws or regulations.(b) Client hereby grants Netsertive a nonexclusive right and license to use Client’s name, logo, and brands as necessary to provide the Services hereunder, and in marketing materials of Netsertive and Qualified Channel Partners. Client shall provide trademark authorizations to Netsertive as required by content ad networks such as Google, Inc. and other networks in order for Netsertive to provide the Services hereunder.

6. Data and Content.

(a) In order to make continuous improvements, respond to market forces on behalf of Client, and provide data analysis services, notwithstanding anything to the contrary herein, Netsertive shall have the right to use 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 contain no Client attribution or identification. In addition, to the extent Digital Marketing Funds or Services are made available by Client to a Qualified Channel Partner, Client agrees that Netsertive shall have the right to provide information related to the Services provided to Client hereunder to the Qualified Channel Partner and in such a manner as may be used for the benefit of such Qualified Channel Partner.

(b) Client is solely responsible for the content of all advertisements and marketing programs delivered in connection with the Services and 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, its Channel Partners or their respective representatives or agents or otherwise used by Client or its Channel Partners or their respective representatives or agents.

7. Representation and Warranties; Disclaimer.

Each party hereby represents and warrants that (a) the execution and delivery of the Quote attached to these terms and conditions by such party has been authorized by all requisite company action of such party, (ii) the Quote and these terms and conditions are 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 the Quote or these terms and conditions. Netsertive further represents and warrants that it shall perform the Services in a professional, competent and workmanlike manner in accordance with standards of quality prevailing in the industry. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NETSERTIVE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTIBILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.

8. Call Tracking and Business Listing Services.

(a) 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.

(b) Certain Services may include business listing services. In such event, Netsertive will provide monitoring and syndication services but will not be responsible for confirmation and/or claiming services which may be required by some third-party business listing services. Client business data online may be taken from various internet databases from both public data, Client-supplied data and data from multiple third parties. Netsertive makes no warranty regarding the timeliness or accuracy of Client’s business data on third party directories and web-sites. Netsertive will only provide Client’s business data to third party directories and web sites after Client has provided data specific to Netsertive’s business listing services.

(c) In addition, Netsertive Services to Client may be dependent on information provided by Client. 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.

9. Indemnity.

Client shall indemnify, defend and hold harmless Netsertive and its affiliates from and against any losses, damages, claims, fines, penalties and expenses (including reasonable attorneys’ fees) (collectively, “Damages”) that arise out of or result from a third party claim relating to a breach of this Agreement by Client, use of content provided by or on behalf of Client or in collaboration with Client, any breach of applicable law by Client, and any action taken by Netsertive at Client’s direction. Netsertive shall indemnify, defend and hold harmless Client and its affiliates from and against any Damages that arise out of or result from a third party claim relating to a breach of this Agreement by Netsertive.

10. Limitations.


11. Non-Solicit.

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.

12. Force Majeure.

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.

13. Relationship of Parties.

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.

14. Miscellaneous.

Neither party shall assign any right or obligation under the terms and conditions and the related Quote 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. If any one or more provisions of these terms and conditions 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 these terms and conditions 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 these terms and conditions or the related Quote 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 Quote. The failure of either party to these terms and conditions to insist upon the performance of any of these terms and conditions, 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. These terms and conditions shall inure to the benefit of and bind the successors and assigns of the respective parties. The Quote 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. The Quote, these terms and conditions and all transactions contemplated hereby and thereby 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 these terms and conditions or the breach hereof. The Quote, these terms and conditions and any exhibits hereto, shall constitute the entire agreement between the parties with respect to the subject matter hereof. The provisions of the Quote and these terms and conditions supersede all contemporaneous oral agreements and all prior oral and written communications and understandings of the parties with respect to the subject matter hereof.