CLIENT MARKETING AGREEMENT
ResponseLogix, Inc. dba Digital Air Strike™ (“DAS”) will use commercially reasonable efforts to provide the Marketing Services which the Client (also referred to as “you” and “your”) purchases from DAS from time to time (“Marketing Program”).
1.) Client Responsibilities
For purchased services (“Services”) requiring Client provided data, action, information or access, DAS is not required to provide such Services until Client provided data, action, information or access is received by DAS and successfully validated. Regardless, Client will still be responsible for the payment obligations described in this Agreement. In order for DAS to effectively deliver the purchased Services outlined in your contract, Client management and personnel will be required to attend various meetings and training sessions as requested by DAS. DAS may change the elements or functions, services, or program requirements at any time with notice to the Client. Client’s continued use of the program following the notification constitutes Client’s acceptance of those changes.
For Social Logix Services: Client agrees to provide DAS with login and password access to any existing social media or review sites at time of signing the Client Marketing Agreement or at the time of the first Kickoff call. Client will be responsible for obtaining access from prior vendors, employees or sites directly, if applicable. In connection with delivering the Services, Client hereby grants and agrees to provide DAS with reasonable access to data that is required to deliver DAS services. Client agrees that Client managers working with DAS staff will be available to complete a minimum one hour Kickoff conference call on general social media content at the start of the program. During this call, it is critical that Client have available all information detailed on the Social Logix Exhibit A including valid logins and passwords for all the sites.
DAS will make an initial attempt to claim and/or update sites. Some sites require Client participation or Client will need to provide DAS a site-required payment in order to complete the claiming and/or updating process. Client understands their participation will be required in order to complete process, and in the case of sites that require payment, DAS will notify Client of fees the sites require the Client to pay prior to claiming sites or requesting updates thereto. Client understands that DAS’s efforts related hereto are “best efforts”, and that DAS cannot guarantee the sites will conduct all recommended or requested updates. Client social site access and policies are subject to change by the social sites and DAS is not responsible for any site that requires payment or additional conditions that the Client needs to meet in order for DAS to provide full range of services (i.e. if paid access is required in order to respond to public reviews on a specific site, DAS can still monitor and alert Client of public activity as well as suggest responses for packages that include responses, but DAS may not be able to respond publically on Client’s behalf if Client has not paid the site fees and/or released site logins to DAS).
Client agrees to pay any and all pass through fees for CRM or other ‘system integration’ fees to DAS that are required to deliver the Services herein. Client understands these fees may incur a management and handling surcharge from DAS not to exceed 25% of the total cost of the pass through service unless otherwise notified.
For Enterprise Portal, Reporting, Dashboard and Scorecard Services: Client agrees to either provide DAS with login and password access to any existing enterprise portal, reporting, dashboard, or scorecard services, or to export any necessary data from existing solution including but not limited to: access information, third-party/social URLs, competitive set, etc. Access or exported data should be done at time of signing the Client Marketing Agreement or at the time of the first Kickoff call. Client will be responsible for obtaining access from prior vendors, employees or solutions directly, if applicable. In connection with delivering the Services, Client hereby grants and agrees to provide DAS with reasonable access to data that is required to deliver DAS services. If client is unable to obtain the existing data and DAS must manually collect data, any platform creation discounts will be revoked and additional platform creation fees may be instituted based on the volume of data to be collected by DAS staff. Client agrees to make managers working with DAS staff will be available to complete a minimum one hour Kickoff conference call on general social media content at the start of the program.
For the above Services and all other Services: Subject to the terms of this Agreement, Client hereby grants to DAS a non-exclusive, worldwide, royalty-free license to use, copy, encode, store, modify, archive, distribute, transmit and publicly display Client’s logos, marks, service marks, trademarks and or other Client names or brands, (collectively, the “Marks”), photos, likeness, videos and any other marketing assets provided or made available to DAS for the purposes of fulfilling its obligation under this Agreement. DAS is further hereby granted the right to sub-license the Marks to its third party contractors, affiliates, providers or other parties providing Services under marketing agreements DAS may enter into with third parties.
Client warrants and represents to DAS that it owns or has sufficient licenses and rights to all content and information provided to DAS hereunder (including without limitation any information relating to Leads, as defined below) (“Client Content”) and that the Client Content does not and will not infringe or violate any intellectual property, privacy, publicity, or other third party right or applicable laws, rules, or regulations.
Client agrees to notify DAS of any changes with its vendors that may affect DAS’ delivery of the Services. For example, if Client changes CRM or other partners, Client must notify DAS of same. DAS will not absorb costs or losses incurred by Client due to disruption of Services if Client has not notified DAS of changes to vendors or partners upon whom DAS Services may rely.
Client assumes all legal responsibility for the creation and publication of their own ads, content, and disclaimers. Client can have up to two rounds of minor revisions provided they have given thorough direction on campaign. Anything beyond two rounds will incur a charge of $150/revision. Client agrees to obtain legal review / approval to ensure compliance with specific local, state, and federal law requirements pertaining to social media marketing, lead response, and online advertising. If DAS doesn’t hear from Client within 48 hours of sending content to dealer for review, DAS assumes Client compliance with, and agreement to these terms and conditions.
2.) DAS Responsibilities
DAS shall use commercially reasonable efforts to provide the Services in the manner as described in the Client Marketing Agreement for such Services and add-ons.
3.) Term and Termination
This Agreement shall commence on the Effective Date, and continue for duration of the marketing commitment (“Commitment Period”), and any automatic or otherwise negotiated renewal terms. The Commitment Period following start of Service, unless otherwise stated, will be a term of twelve (12) months. Upon conclusion of the initial Commitment Period, this Agreement will automatically renew on the same term as previously committed, unless the Client has provided a full calendar month’s notice on or before the 1st day of the prior month in which Client requests service to terminate (i.e. if Client requests service to terminate on August 1st then Client would need to give notice no later than July 1st) and notice must be provided in writing as notice of non-renewal to DAS prior to the conclusion of the current contract period. Under all circumstances the Client will be billed for the full month of service for which the termination becomes effective (for example, if the termination becomes effective on July 2nd, the final bill will be for the entire month of July). In the event that Client cancels any of the Services or for any change in the payment terms, any discounts offered will be removed from the Effective Date of this Agreement. For further clarity, if the Client has subscribed for Social Logix and Social Ads services, and cancels either one of the Services while receiving benefit of multi-product discount, the Client will no longer be entitled to these discounts for the remaining subscribed Services.
Recognizing the costs that DAS bears up-front in servicing a client, and the pricing discount that is implied in client’s chosen commitment period, if client terminates this agreement before the end of its commitment period, the client agrees to pay the early termination fees equal to the remaining unpaid amounts as determined under the terms of this Agreement, including any applicable surcharge for commitment term of less than twelve months.
DAS may terminate any of the Client Marketing Terms at any time for any or no reason without liability, effective immediately, by providing written notice to the Client. In the event of such termination, Client will immediately pay all unpaid fees through the date of termination, and DAS will reimburse any monthly subscription fees that were prepaid for marketing programs to be rendered after the date of termination. The one-time Platform Creation fees paid by the Client are not-refundable under any circumstances.
4.) Pricing, Fees and Payment
Client agrees to pay DAS the price shown for Services listed in this Agreement. At its discretion, from time to time and in the standard course of business, DAS may increase prices to better serve its Clients. Clients will receive written notice (email ok) of price increases, and increases will take place upon the client’s next billing cycle. Prices described in this Agreement are quoted for each Client Outlet. An “outlet” is defined as a single physical location which will be monitored and serviced as one entity, receiving one set of social and/or review sites and/or one platform for lead response. If there are multiple entities housed in a single physical location requiring multiple social, review or lead platforms, each of these will be charged separately.
The prices are fixed for the Commitment Period specified in this Agreement, but may be modified by DAS thereafter by providing prior written notice to the Client. All fees exclude any taxes the Client may be required to pay in its taxing jurisdiction. Payments are due in advance of the period to which they apply. Unpaid amounts or errors may be billed in subsequent invoices. If the Client payment method fails or if the account for the Client is past due, DAS may collect past due amounts using other collection mechanisms, and the Client agrees to pay all expenses associated with such collection, including reasonable attorney fees.
Unless agreed upon by DAS, the DAS one-time Platform Creation fee and first full month’s fees are required to be paid in full by credit card immediately and will be applied toward your first invoice for the rendered Services. Subsequent monthly payments by Client are due in advance on or before the first day of each calendar month of Service. Any amount due but not paid by 30 days past the due date will be deemed late and will accrue late charges at a rate equal to the lesser of twenty five dollars ($25.00) per month or the maximum rate permitted by state law from the due date until paid. DAS may, in its sole discretion, pause or terminate services for delinquent accounts and back bill for all late charges and interest fees. It is agreed that all necessary collection and legal expenses may be charged to the Client in the event of default or failure to pay for Services delivered to the Client.
If client provides DAS with credit card, debit card, or bank information, the client authorizes DAS to use such payment information to automatically charge client on a recurring basis to collect all fees due hereunder. The client represents that he or she is authorized to incur charges against the payment method used to purchase the services. The form of payment cannot be changed or altered unless all amounts due under this client marketing terms have been paid in full or otherwise agreed to by DAS in writing.
5.) Compliance with Laws
Client and DAS each represent that their respective actions taken in connection with this Agreement will be in compliance with all applicable laws and regulations.
Subject to the terms and conditions of this Agreement, DAS grants the Client a limited, non-exclusive, non-sub licensable, non-transferable, royalty-free, worldwide right to access and use the DAS set up, training and reporting documents solely for the purpose of fulfilling Client’s obligations under this Agreement, provided that the Client may not (1) alter, modify or manipulate any part of the documents, (2) publicly display, copy, decompile or disassemble the documents, or (3) grant or permit any third party to use or access the documents. The training and Services provided by DAS contains the confidential information and proprietary methods of DAS, and the Client shall protect the confidentiality of the documents and shall not disclose it to any third party. Other than the limited grant of access and use of the documents expressly granted in this Agreement, Client shall have no rights of any kind in the DAS documents, technology, apps or any intellectual property of DAS and DAS reserves all such right, title and interest in the documents, apps, data and such intellectual property.
6.) Ownership of Social Media Properties
DAS agrees that all online marketing content, social media sites, postings, links, logins and passwords built or created by DAS on behalf of the Client (“Digital Assets”) remain the property of the Client as long as account is in good standing, and will be released to the Client upon request and at the completion of the contractual term and after ensuring that all outstanding fees as determined under the terms of this Agreement are paid in full. All DAS apps with any associated data including reviews, testimonials, survey data, offer information and engagement data may be shut down when service is terminated unless Client opts to pay for the apps and associated data to remain live. DAS retains the right to use the aggregate data during and also after the term of the agreement at DAS discretion.
Neither party to this Agreement may assign this Agreement without the other party’s prior written consent, except that DAS may assign this Agreement without the consent of the Client to its affiliates or to a successor to all or substantially all of its business or assets. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
8.) Limitation of Liability
Notwithstanding anything else, DAS (and/or its licensors/affiliates) will not be liable to the Client or any third party with respect to the subject matter of this agreement under any contract, negligence, strict liability or other or equitable theory for (i) consequential, special, indirect or incidental damages, including without limitation lost profits or lost data, (ii) punitive damages including in connection with any third party claim even if such party is advised of the possibility of such damages or (iii) cost of procurement of substitute goods, technology, programs, services, or rights, even if told those damages may occur in connection with the Client’s use of, or participation in, the programs or services, or (iii) liability that in the aggregate exceeds the amounts paid to DAS under this agreement with respect to the applicable program in the six (6) month period before the liability accrues.
9.) Warranty Disclaimer
The programs and services provided hereunder are provided “as is” and “as available”, and DAS and its affiliates/licensors do not make any warranties or guarantees about the programs/services/licenses or the Client’s use of or participation in the programs or services, including, without limitation: (a) express or implied warranties of any kind, (b) warranties arising from a course of performance or dealing or trade usage, (c) warranties of uninterrupted operation without error; or (d) implied warranties of merchantability, non-infringement, or fitness for a particular purpose with respect to the program or services.
10.) Force Majeure
Neither DAS nor its licensors are responsible for (i) delays in delivery of the programs or Services, no matter who or what caused the delay and/or and/or (ii) anything outside DAS’ reasonable control or resulting from Client’s breach of this Agreement. DAS is not responsible for the accuracy or completeness of any data provided by Client or any third party on Client’s behalf.
11.) Choice of Law and Arbitration
Any claim, controversy or dispute arising out of or resulting to the Terms (“Claim”) will be exclusively governed by the laws of the State of Arizona, consistent with Federal Arbitration Act without regard to conflict of law provisions or giving effect to any principles that may provide for the application of the laws of another jurisdiction. Any disputes under this agreement shall be brought in the courts of Maricopa County in Arizona and the parties consent to exclusive jurisdiction in such courts. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
12.) Independent Contractors
Notwithstanding anything else herein, the parties are independent contractors and not employees, agents, joint ventures, or otherwise affiliated and neither has any right or authority to bind the other in any way.
In connection with this Agreement, the parties may have access to confidential business, technical, or financial information of the other party, including, without limitation, all customer lists, business and marketing plans, technology, and information relating to that party’s products, services and pricing (“Confidential Information”). Notwithstanding anything to the contrary, Confidential Information does not and shall not include information generated by DAS in connection with the provided Service or programs. Confidential Information shall not include any information which (i) is or becomes generally publicly known through no act or omission of the receiving party; (ii) is received, without restriction, from a third party without any breach of a confidentiality obligation; (iii) is known by the receiving party prior to disclosure by the disclosing party without any breach of a confidentiality obligation; or (iv) was independently developed by the receiving party without reference to the disclosing party’s Confidential Information. Except as expressly permitted in this Agreement and for the provision of the Service or programs, neither party shall use any Confidential Information of the other party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care.
Neither party shall disclose the other party’s Confidential Information to any person or entity except as necessary to perform its obligations hereunder or, in the case of DAS, in connection with the provision of the Service or programs, or except to a party’s legal and financial advisors, potential investors and acquirers. If compelled by law or court order, the receiving party may disclose Confidential Information of the other party only to the extent required by law or court order, provided the receiving party gives adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to request protective orders or other confidential treatment there for.
In connection with the Service, the parties acknowledge and agree that DAS may collect, sell, publish, market and report on data generated by DAS in connection with the Services including without limitation with respect to aggregate measures of its Services’ or platforms’ performance.
- This Agreement shall supersede all prior contracts and documents in connection with such subject matter hereof. This Agreement may not be amended, modified, or any provision hereof waived, except as mutually agreed by both parties in writing. No waiver, express or implied, of any provision of this Agreement, or of any breach hereof, shall constitute a continuing waiver of such provision of a breach of waiver of any other provision of the Agreement.
- Anyone agreeing to the Terms on behalf of the Client represents and warrants that it has full legal power and authority to enter into these Client Marketing Terms, perform obligations hereunder, and authorize the fee payments set forth in this Agreement(s).
- Notices under these Terms must be in writing and sent via facsimile, registered or certified mail or commercial courier to the parties at their respective addresses set forth herein, and in case of DAS, to the attention of Accounting Department at 2001 Gateway Place, Suite 750W San Jose, California 95110. Client agrees that during the term of this Agreement, subsequent renewal terms, and for one (1) year following termination of business relationship between Client and DAS, that it will not encourage nor solicit any employee or consultant of Digital Air Strike™ to leave for any reason.