This Terms and Conditions (Advertiser Agreement) document (a) forms a part of (i) any Order Form to which it is attached or appended by reference that both Max Velocity Marketing, LLC, dba Auto Body Repair Hub, (a subsidiary of NBN Enterprises LLC) and the customer identified therein (“Customer”) execute and deliver, and (ii) any other Order Form that references these Terms and Conditions that Max Velocity Marketing and Customer may execute and deliver from time to time, and (b) sets forth additional terms and conditions relating to the provision and use of the Ordered Product(s)/Service(s) (defined below). The Order Forms described above, these Terms and Conditions, and all attachments, addenda, exhibits and schedules to such documents are, collectively, the “Agreement.” Capitalized terms that are not defined in these Terms and Conditions (or in an addendum or exhibit hereto), shall have the meanings given those terms under the Order Form.
ORDERED PRODUCTS AND SERVICES
All products and services ordered by Customer in the Order Form and/or any additional or supplemental order form are referred to herein collectively as the “Ordered Product(s)/Service(s).” The Ordered Products/Services may include, but are not necessarily limited to, (i) advertising services (“Advertising”), (ii) the development, hosting, maintenance and/or support of one or more websites (each, a “Customer Website”) and/or (iii) the provision of other products or services that may include, among other things, email marketing and/or social media management services. The initial term for each Order Form and all Ordered Products/Services described therein, unless and until terminated in accordance with Section 9, shall be (A) the initial term set forth in the Order Form, if any, or (B) if no such term is set forth in the Order Form, a period of twelve (12) months starting on the effective date of such Order Form. Upon expiration of the initial term, the term for each Order Form and all Ordered Products/Services described therein shall be (1) renewed or extended in the manner specified in the Order Form, if any, or (2) if the Order Form does not specify the manner of renewal or extension, automatically renewed on a month-to-month basis (the initial term and any extension or renewal term, the “Contract Period”), in each case, unless and until terminated in accordance with Section 9.
For each Ordered Product/Service, Max Velocity Marketing hereby grants Customer a non-exclusive, non-transferable, revocable, limited license during the term of the Agreement to access and use that Ordered Product/Service and the related Max Velocity Marketing Proprietary Materials (defined below) solely in connection with the lawful operation of its business expressly identified in the Order Form.
With respect to any Ordered Products/Services that include Advertising, Customer expressly acknowledges and agrees that (i) all Advertising content submitted to Max Velocity Marketing for publication hereunder is subject to Max Velocity Marketing’s approval in its sole discretion, (ii) Max Velocity Marketing reserves the right in its sole discretion to reject or cancel any Advertising at any time, with or without notice to Customer, and (iii) the positioning within any applicable media (including Max Velocity Marketing websites and/or third party websites) of all Advertising is and shall be at the sole discretion of Max Velocity Marketing. In addition, while there is no requirement that Customer own the inventory/units included within any Advertising submitted hereunder (for instance, in the case of a broker or auction situation), (A) Customer must (and hereby represents and warrants that it does and shall) have all necessary rights to include such inventory/units within any and all such Advertising, and (B) Customer acknowledges and agrees that it is (and shall be) solely responsible for accurately representing all applicable inventory/units included within such Advertising (e.g., price, color, condition, features etc.), whether or not Customer owns such inventory/units, and Max Velocity Marketing shall not have any liability whatsoever, to any person or entity, for any inaccuracies in any Advertising submitted hereunder.
Max Velocity Marketing may also offer various products, services and/or other solutions that are provided by third parties and interoperate with one or more Ordered Products/Services hereunder, including but not necessarily limited to chat, social media management and data distribution (collectively, “Third-Party Products”). If (but only if) any Third-Party Products are utilized together with Ordered Products/Services, Customer expressly acknowledges and agrees that the following terms shall apply with respect to such Third-Party Products: (i) any use by Customer of any Third-Party Products, and any exchange of data between Customer and any provider of such Third-Party Products, is solely between Customer and the applicable third-party provider, and Max Velocity Marketing does not warrant or support any Third-Party Products and hereby expressly disclaims any representations or warranties of any type or nature whatsoever with respect to any Third-Party Products; and (ii) in addition to and not in limitation of the foregoing, Customer understands and agrees that (A) Customer shall look solely to the third-party vendor of the applicable Third-Party Products (and not to Max Velocity Marketing) for maintenance and support, including but not limited to resolution of system errors, bugs, patches and fixes, and (B) Customer’s sole and exclusive rights and remedies with respect to any Third-Party Products, including rights and remedies in the event any Third-Party Products give rise to an infringement claim, will be against the third-party vendor and not against Max Velocity Marketing.
For each Ordered Product/Service, Customer shall pay Max Velocity Marketing all fees designated in the Order Form for that product or service, as the same may be hereafter modified, which may include one-time “upfront fees” or set-up fees and costs and/or recurring “monthly fees” (collectively, the “Fees”).
Except to the extent that any such fees are payable in advance, Max Velocity Marketing will invoice Customer for all Fees on a periodic basis (which will be monthly in most cases), and all invoices are due upon receipt. If any Ordered Products/Services are provided on a bundled basis, Max Velocity Marketing will begin invoicing for those Ordered Products/Services when the first of those bundled Ordered Products/Services is deployed/activated.
Any invoice that remains unpaid thirty (30) days after the original invoice date shall be subject to interest on any outstanding balance at a rate equal to the lesser of (i) 1.5% per month or (ii) the maximum rate permitted by applicable law. Max Velocity Marketing also reserves the right to impose a late fee of twenty dollars ($20) on any invoice that remains unpaid thirty (30) days after the original invoice date. If any outstanding Fees remain unpaid for thirty (30) (or more) days from the original invoice date, Max Velocity Marketing may, without limiting any of its rights and remedies, suspend the provision of the Ordered Products/Services in respect of which payment has not been received plus any or all other Ordered Products/Services.
All Fees are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed for the provision of Ordered Products/Services, and Customer shall be solely liable for and shall pay all such taxes (except for any such taxes based on the net income of Max Velocity Marketing), regardless of when they were incurred and/or whether or not they are included on any invoice.
Max Velocity Marketing may modify any monthly Fees payable under the Agreement by giving Customer at least thirty (30) days’ prior written notice from time to time. Any such Fee modification shall not require an affirmative response by Customer or any further action by the parties; provided, however, if any such Fee modification will result in an increase in the Fees that are payable in respect of an Ordered Product/Service, then Customer may cancel the applicable Ordered Product/Service by giving Max Velocity Marketing written notice of cancellation before the Fee increase goes into effect. If Customer does not timely cancel the applicable Ordered Product/Service, then such Fee increase shall be effective (and binding on Customer) as of the date specified in Max Velocity Marketing’s initial notice.
Customer acknowledges and agrees that (i) in order to transact business using various applicable Ordered Products/Services, certain capabilities are required of Customer’s computing and telecommunications equipment (both hardware and software), (ii) Customer is obligated to procure and install for its use, at its own expense, all equipment and infrastructure (including wiring) that is necessary to access and otherwise receive the benefit of the applicable Ordered Products/Services, and (iii) Max Velocity Marketing shall not be responsible or liable if for any reason Customer’s telecommunications and computing equipment is incompatible with or otherwise insufficient for Customer to utilize any applicable Ordered Products/Services.
Customer further acknowledges and agrees that (i) Max Velocity Marketing, in its discretion, may collect, track, analyze and/or create information and reports (collectively, “Results Reports”) related to each of (A) activities and/or results obtained in connection with Customer’s use of the Ordered Products/Services, including, without limitation, analytics data, measurement data, and other data regarding the use and/or effectiveness of any Advertising, Customer Website, or other Ordered Products/Services (collectively, “Analytics Data”), (B) consumer or purchaser sales leads generated from Sales Listings (defined below) on Max Velocity Marketing’s websites or Customer Websites in connection with the provision of the Ordered Products/Services, including, without limitation, all information about the prospective consumer or purchaser received with the lead, including their name, email address and phone number as the prospective consumer or purchaser may provide (collectively, “Lead Data”); and (C) Listings Data and Customer Content (each defined below); and (ii) in furtherance thereof, Max Velocity Marketing may install certain tracking pixels or other similar tools on Max Velocity Marketing’s websites, the Customer Websites and the Customer Content included therein (including photos) and use those pixels and tools to collect information relating to such use of the applicable Ordered Products/Services and/or any Analytics Data, Lead Data, Listings Data, or Customer Content.
Customer acknowledges and agrees that, as between Customer and Max Velocity Marketing, Customer is solely responsible for all products advertised via any Advertising hereunder (including but not limited to the pricing thereof) as well as all information, content, messages, editorial content, music recordings, photographs, videos, artwork or other similar content that is included within, displayed on or distributed through any Advertising, any Customer Website, any Max Velocity Marketing website or any other product maintained or made available, in any media (electronic or otherwise), through any Ordered Product/Service (such content, except to the extent it incorporates any Max Velocity Marketing Proprietary Material, is collectively the “Customer Content”). Without limiting the foregoing, Customer represents and warrants to Max Velocity Marketing that (i) Customer owns the Customer Content and/or (ii) all licenses, rights and other permissions from third parties (including but not limited to ASCAP, BMI and the Copyright Clearance Center) that are necessary to display or distribute the Customer Content through the applicable Ordered Products/Services shall be obtained (for the benefit of Customer and Max Velocity Marketing) and fully paid before such display and/or distribution commences and, further, shall thereafter be maintained in full force and effect by Customer for so long as such distribution continues hereunder. Customer acknowledges and agrees that Max Velocity Marketing has not undertaken, and will not undertake, any obligation to investigate or evaluate the extent to which the display or distribution of any Customer Content infringes upon or misappropriates any right of any third party or is otherwise permissible.
Customer acknowledges and agrees that, as between Customer and Max Velocity Marketing, Customer is solely responsible for the use of Lead Data in compliance with the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 USC §§ 6101 et seq.), the Telephone Consumer Protection Act of 1991 (47 USC § 227), the Telemarketing Sales Rule (16 CFR Part 310), and the CAN-SPAM Act (15 U.S.C. § 7701 et seq.), in each case as amended from time to time and including the accompanying federal regulations related thereto. Customer acknowledges and agrees that Max Velocity Marketing has not undertaken, and will not undertake, any obligation to ensure that the Lead Data provided to Customer can be used by Customer without violating the Telephone Consumer Protection Act of 1991 (47 USC § 227) and the Telemarketing Sales Rule (16 CFR Part 310), in each case as amended from time to time and including the accompanying federal regulations related thereto.
PROPRIETARY RIGHTS; LICENSE; RESTRICTIONS
As between the parties, Max Velocity Marketing shall own all right, title and interest in and to the following (the “Max Velocity Marketing Proprietary Materials”): (i) the Ordered Products/Services, whether owned by Max Velocity Marketing or provided through a contract or license with a third party; (ii) all Intellectual Property Rights (defined below) in the Ordered Products/Services and all software, technology, materials, documentation, and Brand Features (defined below) that relate to, or furnished in connection with, the Ordered Products/Services, including, without limitation, all Intellectual Property Rights in any software product and/or application; (iii) the style and design of any Customer Website; (iv) all text, audio, photo, video or other creative works, whether in print or electronic form, developed by Max Velocity Marketing for any Customer Website or Sales Listing (defined below); (v) all Analytics Data, all Lead Data, and all Results Reports and the content therein; and (vi) all derivative works and enhancements to any of the foregoing. Customer shall not acquire any right, title or interest in the Max Velocity Marketing Proprietary Materials, except for the limited use rights expressly granted under the Agreement, and Customer shall not take any action to impair, limit or interfere in any manner with Max Velocity Marketing’s ownership or rights with respect to any Max Velocity Marketing Proprietary Materials. Any rights not expressly granted herein are deemed withheld. Customer acknowledges and agrees that nothing herein shall be deemed or construed to limit in any manner Max Velocity Marketing’s use of the Max Velocity Marketing Proprietary Materials. Except as expressly permitted in the Agreement, Customer may not use, reproduce, transfer, share, sublicense or transmit any Max Velocity Marketing Proprietary Materials in any form or by any means without the prior written consent of Max Velocity Marketing, and, without limiting the foregoing, Customer is expressly prohibited from reselling, loaning or otherwise sharing any Max Velocity Marketing Proprietary Materials or divulging any related Confidential Information (defined below). Furthermore, Customer shall not directly or indirectly, and shall not permit or authorize a third party to, modify, translate, transform, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code from any Max Velocity Marketing Proprietary Materials. Customer acknowledges and agrees that nothing herein shall be deemed or construed to limit in any manner Max Velocity Marketing’s use of the Max Velocity Marketing Proprietary Materials.
As between the parties, Customer shall own all right, title and interest in and to the Customer Content, all specifications and inventory data relating to any Sales Listing that Customer collects and submits to any Max Velocity Marketing website or Customer Website (collectively, “Listings Data”), and all Intellectual Property Rights therein (collectively, the “Customer Proprietary Materials”); provided, Customer hereby grants to Max Velocity Marketing a non-exclusive, worldwide, irrevocable, perpetual, royalty-free right and license (with rights to sublicense) to reproduce, use, prepare derivative works from, display and distribute the Customer Proprietary Materials as may be necessary or appropriate for Max Velocity Marketing to provide the Ordered Products/Services (without limiting the foregoing, Max Velocity Marketing may share the Customer Proprietary Materials with its affiliates and applicable third-party vendors to the extent Max Velocity Marketing deems necessary or appropriate to provide the Ordered Products/Services). In addition to and not in limitation of the foregoing, the parties acknowledge and agree that (i) subject to the rights of applicable registries and/or registrars in and to any such domain name(s), Customer is the sole owner of the domain name(s) for any Customer Website registered by or on behalf of Customer, and Customer shall be solely responsible for any applicable domain name registration fees (Max Velocity Marketing may host domain name(s) on behalf of Customer, but shall have no ownership rights or responsibilities with respect thereto); (ii) Max Velocity Marketing shall have no responsibility for Customer’s failure to renew or maintain in good status Customer’s domain name(s); and (iii) Customer shall not be entitled to any credit against its Fees payable to Max Velocity Marketing if any Customer Website is unavailable due to any failure to maintain domain name(s) in good standing.
Without limiting the foregoing, Customer agrees that Max Velocity Marketing may use, prepare derivative works from, reproduce, modify, sublicense, transfer, sell, and distribute any Analytics Data, Lead Data, and/or Results Reports for any lawful purposes, including, without limitation, in connection with (i) Max Velocity Marketing’s internal creation, development, or improvement of any products and services, or (ii) Max Velocity Marketing’s providing or marketing of any products and services, including analytic reports or measurements of the effectiveness of Max Velocity Marketing products and services, to third parties. In addition, Customer further hereby agrees that Max Velocity Marketing may, and hereby grants Max Velocity Marketing the non-exclusive, worldwide, irrevocable, perpetual, royalty-free right and license (with rights to sublicense) to, reproduce, use, prepare derivative works from, display and distribute any Customer Content and Listings Data for a purpose described in clauses (i) or (ii) in the preceding sentence and/or include any such Customer Content or Listings Data in any Results Report; provided, however, that all Customer Content, Listings Data, Analytics Data and/or Lead Data, whether contained in any Results Report or otherwise, that is shared, disclosed, distributed, transferred, or made available by Max Velocity Marketing to a third party shall, before being so shared, disclosed, distributed, transferred or made available, be converted into an aggregated, anonymized format that does not display (A) any information that is personally identifiable information of any individual customer of Customer, (B) the financial terms of any sale made by Customer or any other information relating to a Sales Listing that is published publicly, or (C) any information that identifies the Customer.
Customer further agrees that, notwithstanding anything to the contrary herein, Max Velocity Marketing may, and Customer expressly grants Max Velocity Marketing the right to, disclose and provide to its affiliates, representatives, and applicable OEM partner, any Lead Data, including the disposition status thereof, with respect to any consumer or purchaser lead that is provided or sold to Customer by such OEM, Max Velocity Marketing, or any such Max Velocity Marketing affiliates or representatives.
Max Velocity Marketing shall have a royalty-free, worldwide, transferable, irrevocable, perpetual license (with rights to sublicense) to use or incorporate into the Ordered Products/Services any suggestions, recommendations, enhancement requests or other feedback provided by Customer relating to the Ordered Products/Services.
During the Contract Period and for a period of six (6) months thereafter, Customer shall not (i) solicit or attempt to solicit any actual or prospective client or customer of Max Velocity Marketing to purchase, license or otherwise acquire rights to use on a commercial basis any product or service that is similar in any material respect to any product or service provided by Max Velocity Marketing as part of its offerings or (ii) induce or attempt to induce any customer, client or supplier/vendor of Max Velocity Marketing to cease doing business with Max Velocity Marketing.
As used herein, (i) “Intellectual Property Rights” shall mean any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide; (ii) “Brand Features” shall mean the trade names, trademarks, service marks, logos, and other distinctive brand features of a party, as secured by such party from time to time; and (iii) “Sales Listing” shall mean a classified listing relating to Customer’s inventory.
During the Contract Period and for a period of three (3) years thereafter, each party (the “Receiving Party”) shall keep confidential and not disclose (except as permitted herein) the terms of the Agreement and all confidential or proprietary information, technology, materials and know-how of the other party (the “Disclosing Party”) disclosed to or acquired by the Receiving Party pursuant to or in connection with the Agreement that either is designated as confidential and/or proprietary or that should reasonably be understood, based on the nature of the information and/or the circumstances surrounding its disclosure, to be confidential and/or proprietary (“Confidential Information”). (Without limiting the generality of the foregoing, Customer expressly acknowledges and agrees that Max Velocity Marketing’s Confidential Information includes the Max Velocity Marketing Proprietary Materials.) In connection with the foregoing, (i) neither party shall use any Confidential Information with respect to which it is the Receiving Party for any purpose other than to carry out the activities permitted or contemplated hereunder (including provision or use of the Ordered Products/Services and any uses authorized under Section 5, as applicable), or to exercise or enforce its rights under the Agreement; (ii) each Receiving Party shall use commercially reasonable efforts to protect the Confidential Information of the Disclosing Party against any unauthorized use or disclosure, and in any event shall take precautions at least commensurate with those taken to protect its own Confidential Information of a similar nature; and (iii) each Receiving Party shall notify the Disclosing Party promptly in writing upon such party learning of any unauthorized use or disclosure of any Confidential Information of the Disclosing Party, and will cooperate in good faith to remedy such occurrence to the extent reasonably possible. The restrictions set forth in this Section 6 shall not apply to any information that: (A) was known by the Receiving Party without obligation of confidentiality before disclosure thereof by the other party; (B) was in or entered the public domain other than as a result of any breach of the Agreement by the Receiving Party; (C) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; or (D) is independently developed by the Receiving Party without use of or reference to any information disclosed by the Disclosing Party hereunder.
Notwithstanding Section 6(a), the Receiving Party may disclose Confidential Information or portions thereof: (i) to its officers, directors, employees, or contractors who (A) need to know such Confidential Information for a purpose described in Section 6(a)(i), (B) are informed by the Receiving Party of the confidential nature of the Confidential Information, (C) are subject to confidentiality duties or obligations to the Receiving Party that are no less restrictive than the Agreement, and (D) are directed by the Receiving Party to comply with the Agreement; (ii) to the extent permitted or contemplated under Section 5; and (iii) to the extent legally required by any applicable law, court order, or judicial process, provided that (A) the Receiving Party provides reasonable prior notice to the Disclosing Party of such requirement, (B) discloses only that portion of the Confidential Information that is strictly required by such law, court order, or judicial process, and (C) discloses such Confidential Information only to those recipients entitled to receive it under such law, court order, or judicial process.
Upon written request of the other party, each Receiving Party shall return to the other or destroy, at the Receiving Party’s option, all materials, in any medium, to the extent that such materials contain or reveal all or any part of any Confidential Information of the other party. Notwithstanding the foregoing, the Receiving Party shall be permitted to retain and not destroy (i) archival copies to the extent such retention is reasonably necessary to comply with applicable laws or to determine or enforce obligations under the Agreement, and (ii) copies that are automatically stored in the ordinary course of business on its or their information technology backup and disaster recovery systems.
DISCLAIMER; LIMITATIONS OF LIABILITY
EACH ORDERED PRODUCT/SERVICE AND ALL OTHER MAX VELOCITY MARKETING PROPRIETARY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT FOR EXPRESS WARRANTIES EXPRESSLY SET FORTH IN THE AGREEMENT, IF ANY, MAX VELOCITY MARKETING DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY ORDERED PRODUCT/SERVICE OR ANY OTHER MAX VELOCITY MARKETING PROPRIETARY MATERIAL, AND MAX VELOCITY MARKETING HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE ORDERED PRODUCTS/SERVICES AND THE OTHER MAX VELOCITY MARKETING PROPRIETARY MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING ANYTHING IN THE FOREGOING, (i) MAX VELOCITY MARKETING DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE ORDERED PRODUCTS/SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL FULFILL ANY PARTICULAR NEEDS OR PURPOSES; (ii) CUSTOMER ACKNOWLEDGES THAT THE OPERATION, USE OR PERFORMANCE OF THE ORDERED PRODUCTS/SERVICES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS AND LOSSES, INCLUDING INADVERTENT LOSS OR DISCLOSURE OF DATA OR DAMAGE TO MEDIA, WHICH MAY GIVE RISE TO LOSS OR DAMAGE, AND CUSTOMER AGREES THAT MAX VELOCITY MARKETING SHALL NOT BE LIABLE IN ANY EVENT ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES; AND (iii) CUSTOMER ACKNOWLEDGES AND AGREES THAT NO STATEMENTS MADE IN ANY MARKETING MATERIALS OR ANY OTHER DOCUMENTATION (OTHER THAN STATEMENTS THAT ARE EXPRESSLY SET FORTH IN THE AGREEMENT) HAVE FORMED A PART OF THE PARTIES’ AGREEMENT OR UNDERSTANDING, AND CUSTOMER IS NOT ENTITLED TO RELY ON ANY SUCH STATEMENTS IN MARKETING MATERIALS OR OTHER DOCUMENTATION.
IN ADDITION TO AND NOT IN LIMITATION OF ANY OTHER LIMITATION OF LIABILITY HEREUNDER, CUSTOMER ACKNOWLEDGES AND AGREES THAT (i) MAX VELOCITY MARKETING SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HEREUNDER, ANY ORDERED PRODUCT/SERVICE OR ANY MAX VELOCITY MARKETING PROPRIETARY MATERIAL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MAX VELOCITY MARKETING SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR REVENUE, INCLUDING, BUT NOT LIMITED TO, ANY SUCH LOSSES INCURRED AS A RESULT OF LOSS OF USE OF ANY ORDERED PRODUCT/SERVICE OR ANY MAX VELOCITY MARKETING PROPRIETARY MATERIAL, LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED), BUSINESS INTERRUPTION, COST OF RECOVERING SOFTWARE OR DATA OR OTHER SIMILAR COSTS); AND (ii) MAX VELOCITY MARKETING’S TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND IN RESPECT OF ANY ORDERED PRODUCT/SERVICE OR MAX VELOCITY MARKETING’S OBLIGATIONS UNDER THE AGREEMENT RELATING THERETO, OR THE RELATIONSHIP OF THE PARTIES HEREUNDER, REGARDLESS OF THE FORM IN WHICH ANY CLAIM MAY BE BROUGHT (INCLUDING ANY PURPORTED “CLASS ACTION” OR SIMILAR CLAIMS), SHALL NOT EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY CUSTOMER TO MAX VELOCITY MARKETING UNDER THE AGREEMENT FOR THAT ORDERED PRODUCT/SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS.
If Max Velocity Marketing is not appointed to handle the hosting of domain-name service (“DNS”) entries or domain names relating to the Customer Website(s) that constitute Ordered Products/Services hereunder (if applicable), then Max Velocity Marketing shall not be responsible for any issues that may result from or relate to the hosting, including domain downtime.
Customer shall indemnify, defend and hold harmless Max Velocity Marketing, its affiliates, and its and their respective officers, directors, employees, agents, successors, representatives, and assigns (collectively, the “Indemnified Max Velocity Marketing Parties”), from and against any and all claims, proceedings and demands asserted, alleged, or brought against any Indemnified Max Velocity Marketing Party by any third party (“Claims”), as well as any damages, settlements, judgments, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred in connection therewith, that arise out of or result from (i) Customer’s use of any of the Ordered Products/Services; (ii) the Customer Proprietary Information, including, without limitation, any Claim arising out of Max Velocity Marketing’s receipt or use of the Customer Proprietary Materials in the manner contemplated by the Agreement or alleging that any Customer Content or Listings Data (A) infringes upon, violates or misappropriates any Intellectual Property Right of such third party, (B) violates applicable law, or (C) is inaccurate or misleading; (iii) any breach by Customer of any representations, warranties, covenants or other terms and conditions set forth in the Agreement; or (iv) Customer’s violation of or failure to comply with any applicable law or applicable OEM requirements.
If Max Velocity Marketing determines, in its sole discretion, that the use of any Ordered Products/Services or Max Velocity Marketing Proprietary Materials in accordance with the Agreement is, or may be held to be, infringing (or otherwise in violation of the Intellectual Property Rights of any person), then Max Velocity Marketing may at its option and expense either (i) use commercially reasonable efforts to procure for Customer the right to continue to use the applicable Ordered Product(s)/Service(s) or Max Velocity Marketing Proprietary Materials as provided in the Agreement for the remainder of the then-applicable Contract Period, or (ii) use commercially reasonable efforts to replace or modify the applicable Ordered Product(s)/Service(s) or Max Velocity Marketing Proprietary Materials with a version that is non-infringing but that performs substantially similar functions. While pursuing either option, Max Velocity Marketing may at its option suspend the provision of all or any part of the applicable Ordered Product(s)/Service(s) or Max Velocity Marketing Proprietary Materials. If neither of the foregoing options is commercially viable in the sole judgment of Max Velocity Marketing, then Max Velocity Marketing may cancel its provision to Customer of the applicable Ordered Product(s)/Service(s) or Max Velocity Marketing Proprietary Materials and refund to Customer any Fees pre-paid by Customer with respect thereto.
TERM AND TERMINATION
The Agreement shall commence on the date that the initial Order Form is submitted by Customer and accepted by Max Velocity Marketing and shall remain in effect for the duration of the Contract Period for all Order Forms between Max Velocity Marketing and Customer, as such Contract Periods may be extended or renewed in accordance with Section 1(a) hereof, unless and until terminated in accordance with the terms hereof.
Customer may terminate any Order Form at any time during the first twelve (12) months of the Contract Period only upon delivery of (A) thirty (30) days’ prior written notice of termination to Max Velocity Marketing and (B) payment to Max Velocity Marketing in an amount equal to (x) the number of months remaining in such initial twelve (12) month term of the Contract Period multiplied by (y) the Fees payable for the applicable Ordered Products/Services that are terminated. After such initial twelve (12) month term of the Contract Period, unless otherwise expressly set forth in the Order Form with respect to a given Ordered Product/Services, Customer may terminate any Order Form with respect to any (or all) Ordered Products/Services by providing Max Velocity Marketing with written notice of termination, which termination shall be effective as of the later of (1) 30 days from the day which such notice of termination is delivered, or (2) the date specified in such notice of termination. Max Velocity Marketing may terminate the Agreement or any Order Form at any time on thirty (30) days’ prior written notice of termination to Customer.
In addition to the foregoing termination rights, each party may terminate the Agreement at any time by written notice to the other party if (A) the other party materially breaches the Agreement and the breach remains uncured for a period of thirty (30) days (or, if the breach is Customer’s failure to pay any required Fees, such period shall be ten (10) days) after notice of breach from the non-breaching party, (B) the other party suspends operations, (C) a petition for relief under any bankruptcy legislation is filed by the other party, (D) a petition for relief under any bankruptcy legislation is filed against the other party and not dismissed within forty-five (45) days thereafter, (E) the other party makes an assignment for the benefit of creditors, or (F) a receiver is appointed for all or substantially all of the other party’s assets. In addition to and not in limitation of the foregoing, Max Velocity Marketing may terminate the Agreement (including any and all active Order Forms) immediately upon written notice to Customer if Customer, or any of its employees, agents or other representatives, engages in any conduct that Max Velocity Marketing in its reasonable discretion deems offensive, inappropriate or otherwise inconsistent with Max Velocity Marketing’s standards of conduct, including, without limitation, use of abusive, insulting or derogatory language with any Max Velocity Marketing personnel.
Following termination of the Agreement for any reason, all rights and licenses granted herein shall terminate and Customer shall immediately cease use of all Ordered Products/Services (including by discontinuing use of all Max Velocity Marketing Proprietary Materials) and certify to Max Velocity Marketing that it has destroyed all copies of all applicable Max Velocity Marketing Proprietary Materials. Notwithstanding the foregoing, termination of the Agreement shall not limit either party from pursuing any remedies available to it at the time of or in connection with such termination, nor shall such termination release Customer from its obligation to satisfy all payment obligations under the Agreement. Sections 2, 5, 6, 7, 8, 9(c), 10 and 11 shall survive any termination or expiration of the Agreement.
GOVERNING LAW; DISPUTE RESOLUTION
The parties hereby expressly (a) agree that their respective rights and obligations shall be determined by the terms of the Agreement and (b) waive and opt out of any application of the Uniform Computer Information Transactions Act, or any version thereof, adopted in any State in any form to the maximum extent permitted by applicable law. The Agreement will be construed in accordance with and governed by the laws of the Commonwealth of Virginia (subject to clause (b) in the preceding sentence), without regard to principles of conflicts of law. Each party irrevocably consents to the exclusive jurisdiction and venue of any local, state or federal court that is located in Norfolk, Virginia in connection with any dispute, claim or controversy arising out of or relating to the Agreement, and waives any objections in the nature of jurisdiction or venue. In any action or other proceeding by which Customer’s account is referred to an attorney or collection agency for collection, Customer will pay for all collection fees, costs and expenses incurred by Max Velocity Marketing in connection therewith. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE AGREEMENT.
Authority. Each party represents and warrants to the other that (i) it is duly organized, validly existing and, where applicable as a concept, in good standing under the jurisdiction of its organization, (ii) it has the full right, power and authority to enter into the Agreement and to perform its obligations hereunder, and (iii) upon the complete execution and delivery of the Agreement, the Agreement shall constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Independent Contractors. The relationship of the parties hereunder is that of independent contractors. Neither Max Velocity Marketing, on the one hand, nor Customer, on the other hand, has or will have any power to bind the other or to create any obligation on behalf of the other, nor shall it represent that it has any such power.
Promotional Matters. Max Velocity Marketing may issue press releases and other marketing and promotional material describing the relationship created by the Agreement and, among other things, may display websites or products developed for or provided to Customer as examples of the service offerings available from Max Velocity Marketing. Customer hereby grants Max Velocity Marketing the right to use Customer’s name, trademarks, service marks and logos (i) in advertising targeted to all or any portion of Customer’s customer base in connection with the performance of the Ordered Products/Services hereunder, and (ii) in any advertising and publicity identifying Customer as a customer of Max Velocity Marketing.
Notices. All notices and other communications to each party must be in writing and sent to the applicable address specified in the Order Form, with any such notices to Max Velocity Marketing to be sent care of, (i) for routine business matters, the sales rep or client service rep assigned to Customer by Max Velocity Marketing; or (ii) for material business or legal matters, Vice President/General Manager of the applicable Max Velocity Marketing business line. Unless otherwise agreed, notice shall be deemed given upon (A) receipt when delivered personally, (B) written verification of receipt from overnight courier, (C) verification of receipt of registered or certified mail, or (D) verification of receipt via email.
Force Majeure. No party shall be deemed to be in default or otherwise liable for any delays or failure in performance of its obligations under the Agreement (other than its obligation to pay any monies owed hereunder, which shall not be excused) resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including but not limited to acts of God or nature, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, shortages in fuel, transportation facilities or materials, or failures of equipment, Internet, telecommunications facilities or third party software programs.
Severability; Waiver. If any term or condition hereof is found or ruled to be invalid or unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. The failure of either party to enforce any provision of the Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
Remedies. Except as otherwise expressly set forth in the Agreement, a party’s remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of a party’s exercise of any other remedy. Each party acknowledges that any unauthorized use or disclosure of the other party’s Confidential Information would cause the other party irreparable harm that may not be adequately compensated by monetary damages; accordingly, in addition to any other remedies available to it at law or in equity, each party will be entitled to seek injunctive or other equitable relief to prevent any actual or threatened unauthorized use or disclosure of its Confidential Information without any requirement to prove the inadequacy of monetary damages or post any bond or other security.
Amendment. The Agreement may not be amended or otherwise modified except by a writing signed by both parties or as otherwise expressly provided in the Agreement (such as, by way of example, in the case of Fee increases by Max Velocity Marketing). If at any time after the effective date of Customer’s initial Order Form Max Velocity Marketing updates its model Terms and Conditions, then as a condition to renewing any Contract Period, Customer may be required to agree to such updated Terms and Conditions. In addition, Max Velocity Marketing may, at any time and from time to time during the Contract Period, propose amendments or modifications to these Terms and Conditions by delivering to Customer written notice of Max Velocity Marketing’s proposed amendment or modification, which notice shall identify the sections or paragraphs hereof that are being amended. If Customer does not object to such amendment or modification by delivering to Max Velocity Marketing written notice of objection within thirty (30) days after Max Velocity Marketing delivers to Customer notice of the proposed amendment, then such amendment or modification will be deemed accepted and agreed to by Customer, and the Agreement and these Terms and Conditions shall be automatically amended to include such amendment or modification without any further action by the parties. If Customer validly and timely objects to the proposed amendment or modification in accordance with the preceding sentence, then Customer and Max Velocity Marketing shall endeavor to negotiate a mutually acceptable amendment or modification in good faith.
Assignment; Continuing Obligation. The Agreement is and shall be freely assignable by Max Velocity Marketing, but Customer may not assign or otherwise transfer the Agreement or any of its rights or obligations hereunder to any other person or entity without the express prior written consent of Max Velocity Marketing. In addition, and notwithstanding anything to the contrary set forth in the Agreement, if another person, business or entity becomes the “Customer” under the Agreement, whether by way of a permitted assignment hereof, change of ownership of the original/current Customer hereunder, or any other means or mechanism whatsoever, then following such assignment, ownership change or other means/mechanism the original/current Customer shall nonetheless be and remain responsible for both (i) all obligations incurred by the original/current Customer hereunder prior to such change and (ii) any and all obligations (including but not limited to payment of all Fees) incurred by any such new “Customer” subsequent to such change.
Third Party Beneficiaries. The Agreement is not intended to benefit any third party and the parties do not intend to create, and do not and shall not be deemed to create, any third party beneficiary rights hereunder, except that each Indemnified Max Velocity Marketing Party is a third party beneficiary of Section 8(a) and shall be permitted to enforce its rights thereunder.
Entire Agreement. The Agreement, including the Order Form and these Terms and Conditions, constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, written or oral, with respect thereto. Customer further agrees that in deciding to become a party to the Agreement, Customer has not relied upon any representations or warranties, written or oral, that are not set forth in the Agreement.
Marketing Communications. By entering into the Agreement, Customer consents to receive marketing messages, including emails, from Max Velocity Marketing. Customer may unsubscribe from such marketing messages from Max Velocity Marketing at any time by completing and submitting to Max Velocity Marketing an Email Opt Out Form found on Max Velocity Marketing’s website, including entering on such form the applicable Customer email address and the name of the applicable Max Velocity Marketing business submitting the marketing messages.
[END OF TERMS AND CONDITIONS – UPDATED JANUARY 2020]