(a) Netsertive, Inc. (“Netsertive”) will provide Client certain digital marketing services as further described in one or more Quotes or Change Orders as mutually agreed by the parties from time to time (the “Services”). 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. 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”). Change Orders are generally affected through Netsertive’s online customer portal or by email and counter-email or through other written communications as directed by Netsertive.
(b) The Services selected by Client are for online marketing services in connection with a digital marketing campaign. Netsertive will provide Services in accordance with Client’s overall campaign strategy and as selected by Client through Netsertive’s online customer portal. Services are limited to support of one distinct physical location and one website as declared in Client’s online Quote as notated through the Streetwise Base Subscription count. Services may include initial configuration and account set-up, including an industry-specific review of Client’s business, brands, geographic markets, website and competitive position. Netsertive shall activate the program account following such review and configuration (“Program Activation”). Services also include account management, ongoing monitoring, access to subscribed media channels, vendor selection and media placement, reporting and support. Further, in connection with the Services, Client authorizes Netsertive to determine how to allocate Service Fees on Client’s behalf to best drive performance and achievement of Client objectives as measured by Netsertive’s systems. Netsertive is solely responsible for its third party digital marketing costs and Client bears no risk related to those third party costs.
(a) The subscription fee(s) for Services are as set forth on the Quote applicable thereto or any modifications thereto made by Change Orders from time to time (the “Subscription Fee”) and the Subscription Fee combined with the Digital Marketing Funds described below, collectively, the “Service Fees”. The amount of the monthly Subscription Fee shall be fixed for the term hereof unless mutually agreed by the parties in a Change Order. The Service Fees includes a monthly amount of “Digital Marketing Funds”. Netsertive will consult with Client to determine the appropriate level of Digital Marketing Funds based on 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 together with the Subscription Fee, are in consideration of the Services. The initial monthly amount of Digital Marketing Funds is indicated on the Quote. Client may adjust the monthly amount of Digital Marketing Funds in $100 increments within the range specified on the Quote by providing written notice of such change to Netsertive. Any such change will be effective on the first day of the following month or, if insufficient notice is provided prior to the start of such month, as otherwise determined by Netsertive.
(b) All Service Fees are due monthly in advance. All payments for Services will be charged to the credit card listed on the Quote. As an alternative, Client may request payment for Services through automatic debit of Client’s bank account and if approved by Netsertive all payment for Services will be debited from Client’s bank account monthly in advance. All payments are nonrefundable and shall be made in United States Dollars. Client is responsible for taxes incurred in connection with the Services, including but not limited to sales and use taxes, but not any taxes payable on the net income of Netsertive. The initial configuration fee is payable for configuration or other Services and will be charged to Client upon execution of the Quote or subsequent Change Order. Other initial Service Fees will be charged for the then current month upon Program Activation. Subsequent monthly Service Fees will be charged monthly in advance on the 27th for the upcoming month of service. If a Change Order is executed, Netsertive will charge or refund Client for the change in Service Fees for the then current month upon execution of the Change Order. In the event Client’s credit card or banking information is changed, Client shall promptly notify Netsertive with new payment information using the credit card change form set forth on Exhibit A or Exhibit B, respectively. In the event a credit card or automatic bank account debit is declined for any reason, Netsertive shall notify Client at the email address and telephone number on file with Netsertive. 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.
(c) Service Fees may provide Client access to certain digital advertising channels, as indicated on Client Quote or Change Order. Client acknowledges that access to media channels is dependent upon Client providing information to Netsertive. Client agrees to provide Netsertive information required to configure Client’s account within 48 business hours of enrollment in Services through Netsertive’s online customer portal. Furthermore, Client agrees that Service Fees will not be withheld as a result of delays in providing Netsertive with information required to provide access to digital advertising channels.
(a) Subject to Section 3(c) below, Services shall commence upon Program Activation and continue for the “Term” listed on Client’s Quote. Following this initial Term, the Term shall automatically renew for successive Terms, unless either party provides notice of termination at least 30 and no more than 60 days prior to the effective date of termination, which termination may be for any reason or no reason. Notwithstanding the foregoing, either party may terminate Services 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 a 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 or Change Orders then outstanding. The current version of the terms and conditions can be found online at: www.netsertive.com/s-s-terms-and-conditions
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.
(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 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 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. 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.
(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 advertising materials are made available to Client by a third-party (“Sponsoring Party”) and Client elects to utilize such funds or materials, Client agrees that Netsertive shall have the right to provide information related to the Services provided to Client hereunder to the Sponsoring Party and in such a manner as may be used for the benefit of all participants participating in sponsored programs.
(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 or its representatives or agents or otherwise used by Client or its representatives or agents.
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.
(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.
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.
IN NO EVENT SHALL NETSERTIVE 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, IN NO EVENT SHALL NETSERTIVE BE LIABLE 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.
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.
Should either party institute any action or proceeding to enforce or interpret this Agreement or any provision hereof, for damages by reason of any alleged breach of this Agreement or any provision hereof, the prevailing party in any such action or proceeding shall be entitled to receive from the other party all costs and expenses, including actual attorneys’ and other fees, reasonably incurred in good faith by the prevailing party in connection with such action or proceeding. The term “attorneys’ and other fees” shall mean and include attorneys’ fees, accountants’ fees, and any and all consultants and other similar fees incurred in connection with the action or proceeding and preparations therefor. The term “action or proceeding” shall mean and include actions, proceedings, suits, arbitrations, appeals and other similar proceedings.
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.
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.
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. Calls to and from Netsertive may be recorded for quality tracking purposes. 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.
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