1. SOFTWARE LICENSE. Subject to Client purchasing the appropriate package(s) of website and internet marketing management services, Ads Next™ hereby grants Client a non-exclusive worldwide license to use the software (Website Content Manager, Reporting Dashboard and Online Marketing) (the “Software”) solely for the purposes set forth in the description of the Client Package for the Term of this Agreement. Client acknowledges that the Software is proprietary to Ads Next™ and agrees not to modify, alter or change the Software during the Agreement.
Ads Next™ packages and resells a phone call tracking service that records phone calls between Client and customers for tracking and quality assurance purposes. This service includes monitoring the availability (i.e., “presence”) of the Client and offers Chat and Click to Call icons to the consumer to communicate with the Client.
2. CLIENT RESPONSIBILITIES AND ACKNOWLEDGEMENTS: Except as otherwise provided herein or in the descriptions of the products and services comprising the Client Package, Client is responsible for the content (including, without limitation, text, pictures, and video) comprising the Ads and/or displayed on Client’s site (the “Content”). In the event Ads Next™ creates any Content to be incorporated into an Ad or a Client webpage, such Content shall be submitted to Client for approval prior to incorporation into the site. Consequently, Ads Next™ shall not be responsible for any errors in content but will make every effort to correct errors in a timely manner. Ads Next™ reserves the right to reject any content, in its sole discretion.
Specific to the voice call services provided under this Agreement, you understand that a Shopper making a call will be automatically advised that the call is subject to recording and monitoring prior to the connection of the telephone call to you (the “Recorded Call Prompt Message”). You agree, and acknowledge, that federal, state, and local laws may require you to provide notice to and/or receive express consent and permission 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”). You agree, acknowledge, represent and warrant that you will provide and/or obtain all notices, consents, and permission relating to Call Receivers, as required by applicable state, federal, and local law. You agree, and acknowledge that AdsNext and its voice service providers, ContactAtOnce! LLC and TL Solutions, accept no responsibility for (1) the legality of recording, monitoring, storing and/or divulging telephone calls and (2) the legality of the language used in the Recorded Call Prompt Message as these services and content pertain to federal, state, and local laws.
You represent and warrant in connection with your use of the voice call services, that you have reviewed the legality of recording, monitoring, and storing, and divulging telephone calls, that you are permitted to engage in those activities, and that you will use the voice call service in full compliance with federal, state, and local laws. You represent and warrant that you have reviewed the proposed usage of the voice call service with your legal counsel, and that you have established proper procedures to protect the privacy of the Shoppers and the Call Receivers. In the event the Recorded Call Prompt Message requires a revision in order to comply with applicable law, then you must promptly advise AdsNext in writing of that fact and with a copy of your attorneys’ legal opinion advising the exact language that you are required to comply with under applicable laws. As further consideration for provision of services under this Agreement, you agree to indemnify and defend ContactAtOnce!, TL Solutions and its affiliates, and each of their officers, shareholders, directors, employees and agents (collectively, the “ContactAtOnce! and TL Solutions Indemnified Parties”), against all third party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, charges, expenses (including attorneys’ and accountants’ fees and disbursements) and costs (“Claims”), incurred by, borne by or asserted against any of the ContactAtOnce! and TL Solutions Indemnified Parties to the extent such Claims relate to, arise out of or result from: (i) any intentional or willful conduct or negligence of any employee, agent or subcontractor of your company; or (ii) breach of any representation, warranty or covenant of your company contained herein.
3. PAYMENT. As consideration for the products and services provided hereunder and the license granted hereby, Client shall pay Ads Next™ the Fees set forth in the software and services section of this agreement. The monthly fee schedule will begin after the kick-off (which typically occurs within 1-3 business days from signed agreement). If delayed by client Ads Next has right to begin the monthly fee schedule (bill monthly fee) using the authorized business credit card on file. Client will be billed every 30 days from then on until program is cancelled with 30 days written notice. ALL services and any Software licenses granted hereunder will be suspended if any payment is not received by Ads Next™ within ten (10) days of the date payment is due.
Client will (i) place a valid credit card on file and Ads Next™ will debit Client’s credit card each month 30 days after the first charge in the amount of the monthly Fee until cancelled in writing with 30 days notice.
4. CONFIDENTIAL INFORMATION. During the term of this Agreement, each party may receive confidential Information from the other. Except as expressly authorized by this Agreement or necessary for performance under this Agreement, each party will use commercially reasonable efforts to maintain the confidentiality of all such information which effort, in any event, shall be no less than the effort such party uses to protect its own Confidential Information.
5. TERM AND TERMINATION. The terms and conditions of this Agreement shall commence on the date the agreement is signed. We require 30 days notice in writing for cancellation. Paragraphs 6, 7, 8, 9, 10 and 11 shall survive the expiration or termination of this Agreement.
The Performance Program includes / Client keeps
- Performance Website -Client keeps design, content, pictures & videos (if applicable)
- Content Management System – Proprietary to Ads Next / HTML version only
- Tracking Software – No
- Reporting Dashboard – No
- Benchmark Reporting – No New Reports
- Lead Optimization – No
- Search Engine Optimization – No
- Targeted Pay-Per-Click (PPC) Campaign – No
- Call Review and Analysis – No New Reports
- Call Skills Review and Training – No New Reports
Cancellation policy is 30 days
During the next 30 days Ads Next will do the following:
- Send HTML version of site to client. Includes design and content (content, images and video – if applicable)
- Turn off all marketing, phone tracking numbers, lead certificates, blog feeds, dashboard and PPC
- Work with client to transfer the domain name and notify client that they need to setup new email accounts (if applicable)
Client must be ready to take over the domain, hosting and manage site within the time frame or the Performance Program services listed above and billing will continue. Once cancelled and transferred client may receive a final prorated bill – if the client is on our program past 30 days from cancellation.
6. REPRESENTATIONS AND WARRANTIES. Client represents and warrants that: (i) it is the owner or is licensed to use and display the Content and subject matter contained in its Ads and Campaigns; (ii) its Ads and Campaigns do not and will not violate any law or regulation, including but not limited to laws governing false or deceptive advertising, sweepstakes, comparative advertising, or trade disparagement; (iii) its Ads and Campaigns do not: (a) contain any misrepresentation or content that is defamatory; (b) infringe upon or violate any third party rights including, without limitation, any rights of privacy or publicity; (c) contain content that is violent, obscene, or offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive; or (d) promote or support gambling, illegal sweepstakes or contests; or encouraging site traffic in exchange for money, gift cards, products or other similar incentives.
7. INDEMNIFICATION. Client will indemnify, defend and hold Ads Next™, its agents, affiliates, and licensors harmless from any third-party claim or liability arising out of or relating to the Ads and specifically where the Client created the content for the Ads and/or Campaigns including, without limitation, claims that the Ads and/or Campaigns infringe upon any third party rights. Indemnification shall not apply to tortuous acts, breach of this Agreement, violation of Federal or State laws, or willful misconduct by Ads Next™.
8. DISCLAIMER. ADNEXT’S SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND PROVISION AND/OR USE OF ADS NEXT™ SOFTWARE AND SERVICES ARE AT CUSTOMER’S SOLE RISK. Nothwithstanding anything to the contrary, Ads Next™ shall guaranty its services shall be performed in a professional workmanlike manner, and shall at all times and with commercially reasonable efforts ensure the accuracy, efficiency and effectiveness of its services. The intent of Ads Next™ and the Client is to use services herein to market the Client’s website to generate qualified sales leads and customer website visits. Ads Next™ makes no guarantee that its advertising and marketing services and Software will make Client’s Ads and/or Campaigns successful or generate any business or leads. ADS NEXT™ DISCLAIMS ALL THIRD PARTY SOFTWARE WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY. EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF i) THE AMOUNTS PAID OR OWING DURING THE AGREEMENT PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, or ii) $5,000.00 USD (five thousand dollars). NEITHER CLIENT NOR ADS NEXT™ WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN ADDITION, ADS NEXT™ WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM CLIENT’S USE OF THE SOFTWARE, UNLESS SOFTWARE DEFECT IS THE DIRECT CAUSE OF SUCH LOSS AND Ads Next™ DOES NOT TAKE IMMEDIATE REMEDIARY STEPS TO LIMIT THE LOSS INCURRED USING ITS BEST EFFORTS. THE LIMITATION OF LIABILITY CONTAINED IN THIS SECTION 11 SHALL NOT APPLY TO ANY BREACH OF SECTION 8, ABOVE.
10. GENERAL. This Agreement shall be governed by the laws of the State of Maryland without regard to its choice of law rules. The parties hereby consent to personal jurisdiction and venue in the State of Maryland. If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such provision shall be deemed severed from this Agreement and the remaining provisions shall remain in full force and effect. This Agreement may be freely assigned by Ads Next™ to any successor thereof with the expressed written consent of Client. This Agreement may not be assigned by Client without the expressed written consent of Ads Next™.