_______________________ (“Customer”) and Link Right Media, Inc., a Texas corporation (“Agency”) hereby agree that Agency will use commercially reasonable efforts to provide the Internet Services (hereafter defined), in accordance with the terms and conditions set forth in this Advertising Agreement (the “Agreement”). The term “Internet Services” means the internet advertising and/or website design services listed within this Agreement to include one or all of the following: (i) search engine marketing (SEM) through the use of search engine optimization (SEO) and/or pay per click (PPC), (ii) reputation management, (iii) local search results (iv) custom logo design, and (v) establishing and/or hosting a website (Website), using one or more vendors on various electronic media, including third party websites, mobile applications, and other services for which Agency has the ability and expertise to provide, from time to time. Customer’s initial application form precedes this Agreement and is hereby incorporated herein by this reference (the “Application”). The Application and each subsequently agreed upon Application by and between Customer and Agency shall be governed by and incorporated into this Agreement. Notwithstanding anything herein or in the Application to the contrary, Agency hereby reserves the right to, at any time, replace the features associated with any Internet Services with features of substantially similar value. Agency extends absolutely no “ad impression” or “Click” or “Call” number guaranteed on Internet Services provided under this Agreement. Additional terms and conditions governing Internet Services, Call Tracker services are set forth below.
By signing below, Customer authorizes Agency to (i) publish the products and services listed in this Agreement, and (ii) to provide the Internet Services listed in this Agreement.
This Agreement applies to any and all Internet Services provided to Customer by Agency in accordance with the Application including, without limitation, the replication of those services by Agency.
This Agreement will become effective upon the date that Agency delivers notice of written approval of this Agreement to Customer and both parties have delivered a fully executed counterpart of this Agreement (“Effective Date”). All agreements are transferable and fully enforceable in the event of a transfer of ownership (sale, acquisition, merger, etc.) by either Link Right Media or Customer. The PPC term of this Agreement (“Term”) is the three (3) month period commencing on the Start Date (hereafter defined), after which this Agreement will renew automatically on a month-to-month basis. The reputation management, search engine optimization and local search results term of this Agreement (“Term”) is the twelve (12) month period commencing on the Start Date (hereafter defined), after which this Agreement will renew automatically on a month-to-month basis.
Customer may terminate the Internet Services at any time following the initial Term on thirty (30) days’ prior written notice to Agency. The “Start Date” is the date upon which any Internet Services are first provided.
Agency may terminate this Agreement at any time, for any reason or for no reason, without liability to Customer, effective immediately, by providing written notice to Customer. In the event of such termination, Customer will thirty (30) days to pay all unpaid fees earned under this Agreement through the date of such termination.
Notice/How to Contact Us: All notices required pursuant to this Agreement must be in writing and mailed by U.S. mail or overnight carrier to: Link Right Media, Inc., Customer Care, 1220 Millard Dr., Plano, Texas 75074. For questions or concerns about this agreement, please contact us at Customer Care Center at 972-509-7605.
Customer agrees monthly invoices will be automatically billed for all services delivered under this Agreement, as shown on a monthly invoice delivered to Customer by Agency. Customer acknowledges that an estimate of the fees charged to Customer under this Agreement is shown on the Application. Customer also agrees to pay “one-time”, deposit or set up charges and any taxes due on Customer’s Internet Services (all of which charges will be shown on any invoices delivered by Agency to Customer). Agency reserves the right to require advance payment in full or in part prior to providing any Internet Services. Payment, including taxes, is due within 30 days of Customer’s receipt of an invoice. Payments received more than fifteen (15) days after the invoice due date will incur late fee charges from the invoice date at 1.5% per month or the maximum interest rate allowed under applicable law, whichever is greater. Agency may apply any payments received from Customer, or monies owed to Customer, toward amounts owed by Customer under this Agreement. By Customer’s giving Agency its banking, credit card, debit card or other financial information, Customer shall be deemed to have authorized Agency to initiate debits against Customer’s financial account(s) or charge Customer’s credit card for amounts authorized by Customer, whether periodic or one-time payments. The foregoing authorization will remain in force until all sums owed to Agency under this Agreement are satisfied or the date upon which Customer revokes such authorization in writing. All payments must be made in U.S. dollars, and ACH debits must be made from a business account. Customer also agrees to pay $25.00 for each check or draft returned unpaid.
If Customer fails to timely pay any sums under this Agreement, or fails to meet any other obligation under this Agreement, or if any representation or warranty made by Customer becomes untrue, Agency may: (1) require full and immediate payment of all amounts due under this Agreement; (2) cancel, remove, suspend, or modify Customer’s Internet Services; (3) suspend or terminate any Internet Services; (4) subject to applicable law, refer Customer’s account to a collection agency or attorney due to non-payment, and Customer will be liable for all of Agency’s reasonable costs and expenses incurred in connection with Customer’s non-payment, including, without limitation, Agency’s court costs and reasonable attorneys’ fees incurred in connection with the collection thereof (plus interest accrued thereon); and (5) pursue any other remedies available at law or equity.
Customer must furnish all copy for Internet Services prior to reasonable deadlines set by Agency. Agency may change the form, appearance, size and content of any of its Internet Services at any time without notice to Customer. It is the Customer’s responsibility to monitor and notify Agency, in writing within three (3) business days after discover thereof, of errors or omissions with respect to Customer’s Internet Services. Upon receipt of such written notification from Customer, Agency will endeavor to correct any such error or omission promptly. Customer will not be entitled to any adjustment or credit due to errors or omissions in Customer’s Internet services. Agency does not guarantee that Agency will provide Customer with proofs of Customer ads, nor does Agency guarantee that Customer will have the opportunity to review any such ads prior to publishing in connection with the Internet Services. Notwithstanding the foregoing, if Agency does deliver proofs to Customer with sufficient time remaining for modifications by Customer prior to publishing, Customer must notify Agency in writing of any requested revisions within three (3) business days of such delivery of proofs to Customer. Customer hereby agrees that any advertising copy furnished by Customer must be acceptable to Agency, and Agency reserves the right at all times to reject any advertising which it deems objectionable, at Agency’s sole discretion. Colors, contrast, photos, font, graphics, and other features within the proofs may appear differently within the published product of the Internet Services and Customer hereby acknowledges and agrees that Agency has no obligation to make adjustments or revisions to rectify such differences; it being understood by Customer and Agency that such differences between proofs and published product is customary in the advertising industry.
Agency does not guarantee (I) any specific results from an Internet Services even if Agency has provided an estimate or forecast of such results; (II) the identity of the search engine(s) or other vendors Agency will use to provide Customer Internet Services; or (III) the number, consistency, source or quality of any lead, clicks, calls, search or other actions obtained through Customer’s Internet Services. If Customer turns off its telephone, disables or fails to properly maintain Customer’s website or otherwise impairs Agency’s ability to provide the Internet Services, Customer shall nonetheless be responsible and liable for payments for the term of the Internet Services set forth in the applicable Application. Customer acknowledges and agrees that Agency has no control over the policies of search engines with respect to the types of websites and/or content that such search engines accept now or in the future. Customer’s acknowledges and agrees that its website may be excluded from any search engine or directory at any time at the sole discretion of Agency, the search engine or directory entity. Due to the competitiveness of some keywords and phrases, ongoing changes in search engine ranking algorithms and other competitive factors, Agency does not guarantee and expressly disclaims any purported guarantee of ranking positions of traffic levels for any particular keywords, phrases or search terms; notwithstanding the foregoing, Agency will make reasonable efforts to increase such rankings on behalf of Customer and Customer hereby agrees to reasonably cooperate with Agency in such efforts. Customer acknowledges and agrees that (i) search engines may drop Customer’s listings for legitimate reasons or, occasionally, for no apparent or predictable reason, and (ii) often listings will “reappear” without any additional submissions by Agency on behalf of Customer. In the event of such search engines “dropping” Customer’s listings as described in the immediately preceding sentence and such listing does not reappear within one (1) business day, Agency will resubmit Customer’s website and/or relevant listings information based on the current policies of search engine in question. Customer acknowledges and agrees that Agency is not responsible for changes made to Customer’s website by other parties that adversely affect the search engine or directory rankings of Customer’s website. Notwithstanding anything in any purported oral agreement to the contrary, Customer hereby acknowledges and agrees that (i) Customer’s position and placement rankings ARE NOT GUARANTEED by Agency’s sales representatives, account executives, multimedia consultants, and (ii) any purported written or oral agreements, other than this Agreement, by and between Agency and Customer are hereby merged within this Agreement.
A. Customer represents and warrants that it has the exclusive right to use any trademark, trade name, or copyrighted material included in any copy submitted to Agency. Customer also represents and warrants that it has the right to use any artwork, portrait, picture or illustration of a person shown in any copy submitted to Agency. Customer will notify Agency, in writing, if Customer should cease to have any such right or if Customer shall receive notice from any third party regarding a dispute related to such right to use. Customer hereby assumes sole responsibility for the protection of its intellectual property rights (including the protection of the Customer Content, hereafter defined) in any writing, pictorial illustration, design, map, photograph, or combination thereof, included in its Internet Services. Customer represents and warrants that it holds all necessary permits and licenses to provide the products and services indentified in the Internet Services and to appear under the heading classification(s) listed on this Agreement. Customer agrees that it is responsible for ensuring that its Internet Services comply with all applicable laws or regulations that may be applicable to its business or Agency’s advertising efforts on behalf of Customer under this Agreement. Customer acknowledges and agrees that Agency does not approve or endorse any of Customer’s products or services, whether or not identified in Customer’s Internet Services. Customer hereby indemnifies Agency (and its employees, affiliates and agents, hereafter the “Indemnified Parties”) against, and shall hold Agency the Indemnified Parties harmless from, all liability, claims demands, fines, suits or causes of action, and shall pay all expenses, including reasonable attorneys’ fees, settlements, fines or judgments, incurred by or levied against Agency in the defense thereof, arising out of Customer’s breach or alleged breach of the representations and warranties and EVEN IF SUCH LIABILITES CLAIMS, DEMANDS, FINES SUITS, OR CAUSES OF ACTION ARISE IN WHOLE OR IN PART AS A RESULT OF AGENCY’S NEGLIGENCE (BUT EXPRESSLY EXCLUDING SUCH LIABILITES CLAIMS, DEMANDS, FINES, SUITS, OR CUASES OF ACTION ARISING IN WHOLE OR IN PARTY AS A RESULT OF AGENCY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT).
The term “Customer Content” as used in this Agreement shall mean any content Customer, or any person(s) using Customer’s password, supplies to Agency, posts, or asks Agency to use in Customer’s ads. Customer grants Agency a perpetual, royalty-free, sub-licensable, non-exclusive right and license to use, copy, record, modify, display, publish, publicly perform, distribute (in any form or media), transmit by any means, and create derivative works from the Customers Content in, and for the marketing and sale of, Agency’s products and services. Customer agrees that Customer shall be solely responsible for the Customer Content and will produce and deliver all Customer Content in accordance with Agency’s then current guidelines, procedures, technical requirements, and deadlines. If Customer fails to comply with the provisions of this paragraph, Agency reserves the right to cancel or suspend Customer’s Internet Services.
With the exception of any Customer Content, all tangible and intangible works of any kind in whatever form or media created by Agency in connection with this Agreement will be Agency’s sole and exclusive property. Agency may, in Agency’s sole discretion and at no extra cost to Customer, publish or display the Internet Services (or other information about Customer’s business) in publications, promotional materials and internet media not otherwise referenced in this Agreement and the terms and conditions of this Agreement shall apply to such additional publication or display of the Internet Services or other information about Customer’s business. Customer acknowledges and agrees that Customer has directed or will direct Agency to other resources that provide information about Customer’s business and further agrees that Agency may use that information for the purposes of providing the Internet Services. Agency may copy all or portions of Customer’s website and otherwise access Customer’s website data at any time during the term of this Agreement for purposes of creating or delivering the Internet Services including, but not limited to, Agency’s use of Customer’s website data for the measuring of the performance of the Internet Services or tracking consumer behavior through cookies, reverse web proxies or similar technologies.
Agency, at Customer’s sole cost and expense, will register, own and maintain any Uniform Resource Locator (“URL”), website or domain that Agency provides pursuant to this Agreement. If Customer requests that Agency use Customer’s existing domain, Customer agrees to allow Agency access to Customer’s webmaster of the domain. If the URL cannot be accessed by Agency or due to Customer’s failure to take action, then Agency reserves the right to choose an URL or domain name on Customer’s behalf.
Agency will provide Customer with monthly reports on or before the date that is fifteen (15) business days after the expiration of each calendar month. Such reports will include activity on search engines (e.g., Google, Yahoo and Bing) relating to the Internet Services. Customer hereby grants Agency permission and access to Customer’s website to install proper analytics and tracking phone number codes in connection with the Internet Services. If such codes cannot be installed on Customer’s website for whatever reason, Customer agrees that Agency will not be able to provide full and complete reports to Customer and, in such case, Agency will have no obligation to provide such reports. Without limiting the foregoing and for the purpose of collecting information related to the usage of Customer’s Internet Services, Agency reserves the right to place one or more tracking telephone numbers and tracking URLs in Customer Internet Services (hereafter the “Call Tracker” and “Tracking URLs”, respectively). The Call Tracker will replace any other telephone number(s) and Tracking URL(s) in Agency’s sole discretion. Customer agrees not to use, or allow the use of, the Call Tracker and Tracking URL(s) in any advertisement or for any purpose other than in the Internet Services. Agency also reserves the right to collect information related to the usage of Customer’s Internet Services without the use of Call Tracker or Tracking URL. Customer acknowledges and agrees that Agency is the sole owner of all of the usage information generated by the Call Tracker, Tracking URL(s), and other methods (the “Usage Information”), including without limitation the source and number of call and internet traffic. Any Usage Information Agency shares with Customer, shall be deemed confidential in nature and Customer may not disclose this Usage Information to any third party. Agency may use the Usage Information for research and promotional purposes. If any payment for Internet Services is conditioned upon one or more types of Usage Information, then Agency reserves the right in Agency’s sole discretion to measure or calculate such Usage Information.
Agency has the right, but not the obligation, to record, copy, store and access emails sent to Customer as part of Customer’s Internet Services and to provide access to such emails to Customer and to third parties authorized by Agency or Customer. Customer acknowledges and agrees that Customer is solely responsible for complying with any and all applicable laws and regulations related to (A) the recording and storage of and access to the emails; and (B) the privacy of health-related or personally-identifiable information in the emails.
Customer agrees that Customer will neither hire nor solicit the employment of the Agency employees without written authorization by the Agency (which authorization may be withheld in Agency’s sole discretion), during such time as Internet Services are being performed, and continuing for a period of twelve (12) months after the expiration or termination of this Agreement. Because damages for breach of the prohibition contained within this Section 15 are extremely difficult to ascertain, the parties agree that in the event Customer commits a breach of the prohibition contained in this Section 15, the Customer shall be obligated to pay the Agency’s liquidated damages equal to the greater of (i) one (1) years’ current salary for the employee or employees solicited, or (ii) two (2) years’ offered compensation (such compensation as is offered by the Customer to the solicited employee).
Customer acknowledges and agrees that Internet Services are provided to Customer on an “as is”, “with all faults” and “as available” basis. Agency hereby disclaims all warranties, either express or implied, about the Internet Services and expressly disclaims the warranty of merchantability and warranty of fitness for a particular purpose. The foregoing disclaimer of warranties is a material term of this Agreement, the absence of which would cause Agency to not enter into this Agreement. Furthermore, to the fullest extent permitted by law, Agency specifically disclaims all warranties and guarantees regarding (I) the performance, quality and results of the Internet Services, including ad click rates, conversions, and any user-generated content that appears in Customer’s Internet Services, (II) the accuracy of the information and metrics that Agency provides in connection with the site or Internet Services (e.g., traffic, views, visitors, users, demographics, and behavioral information about visitors and users), (III) Agency’s ability to target ad impressions to or in connection with particular users, types of users, user locations, user queries, or other user behaviors, (IV) the placement, content, promotional value, quality, timing, or number of ad impressions.
Customer acknowledges and agrees that third-parties may inadvertently or for fraudulent or improper purposes generate ad impressions, user views (such improper or fraudulent call or ad clicks, “Third-Party Activity”), which may impact the fees Customer pays Agency and the perceived effectiveness of Internet Services. Customer hereby accepts the risk of Third-Party Activity without liability to Agency and hereby waives any purported right of credit or offset relating to any payments due under this Agreement that are impacted by such Third-Party Activity. As such, the parties agree that Agency has no liability for claims arising from or in connection with Third-Party Activity. To the extent that Agency itself inadvertently generates ad impressions, user views, or ad clicks, Agency’s maximum liability and Customer’s exclusive remedy is a refund in the form of management fee reduction equal to the number of such invalid ad impressions, user views, or ad clicks inadvertently generated by Agency. To the maximum extent permitted by law, Agency disclaims all liability, whether liability or otherwise, and further disclaims all losses, including without limitation loss profits, indirect, incidental, consequential, special or exemplary damages arising out of or in any way connected with this Agreement and/or the Internet Services, even if Agency has been advised of the possibility of such damages. Without limiting the foregoing, Agency’s aggregate liability arising out of or in connection with this Agreement and/or the Internet Services shall never exceed the aggregate amount of payments actually paid by Customer and received by Agency in connection with the Internet Services giving rise to the liability.
Customer agrees to indemnify, defend and hold Agency, its officers, directors, agents, subsidiaries, affiliates, service providers, co-branders, employees and other partners (collectively, the “Indemnified Parties”) harmless from any loss, liability, suit, claim, cause of action made by any third party against such Indemnified Parties and arising out of or related to (1) any content submitted by Customer to Agency, (2) Customer’s violation of this Agreement, any applicable laws or the infringement of any rights of any third party, (3) any act or omission of Customer or Customer’s employees, agents or contracts in connection with his Agreement.
Agency shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Agency such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, governmental regulations, lockouts, fire, floods or other natural disaster, earthquakes, severe weather, accidents, strikes, power or telephone failure, inability to obtain access to any website included in the Internet Services, any third party’s hardware, software or communications equipment or facilities, shortages of transportation facilities, fuel, energy, labor or material.
If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the court shall try to give effect to the parties’ intentions as reflected in such provision, and all other provisions of the Agreement shall remain in full force and effect.
Customer may not assign any of Customer’s rights or obligations without Agency’s prior written consent; provided, however, that such consent shall not be required in connection with the sale of all Customer’s assets or shares of capital stock or other ownership interests (so long as Customer provides written notice of such sale to Agency). In the event of any assignment allowed by the proceeding sentence both Customer and Customer’s assignee shall be jointly and severally liable for the timely performance of Customer’s obligations under this Agreement. Agency shall have the sole right to assign Agency’s rights and obligations under this Agreement. Any purported assignment made in violation of this provision shall be null and void.
This Agreement constitutes the entire agreement between Customer and Agency with respect to the subject matter of this Agreement and supersedes all prior agreements, whether express or implied, written or oral, with respect to the Internet Services. This Agreement may not be amended nor may any obligations be waived, except in writing signed by each of Customer and Agency. Agency’s sales representatives are not authorized to amend this Agreement. Customer warrants that Customer is not relying on any oral or written representations or promises not included in this Agreement.
Customer acknowledges and agrees that Agency and Agency’s affiliates, sub-licensees and business partners may, in accordance with applicable law, share information provided by Customer or contact Customer (including by, but not limited to, telephone, facsimile or electronic mail communication) related to any Internet Services Customer has or Agency may offer. Customer agrees that telephone conversations between Customer and Agency may be monitored and recorded and Customer hereby consents to such monitoring and recording.
If available, Customer agrees and consents to do business with Agency electronically and may accept this application by electronic signature, including recorded oral acceptance, in accordance with or approved format. Such oral acceptance shall be deemed a signature pursuant to the ESIGN Act.
Unless expressly authorized in writing by the other party, neither party shall disclose to any third party any non-public information or materials provided by the other party under this Agreement and reasonably understood to be confidential or use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (I) is in or becomes available through the public domain, (II) is already lawfully in the receiving party’s possession, (III) was known to the receiving party prior to the date of disclosure. Furthermore, Customer will keep in strict confidence all passwords and other access information to the Internet Services.
The undersigned agrees that he/she has the authority and is signing this agreement (1) in his/her individual capacity, (2) as a representative of the Customer, and (3) as representative of the entity identified in the advertising application or for whose benefit the advertisement is being purchased (if the entity identified in the advertising application is not the same as the Customer or the signer). By his/her execution of this Agreement, the undersigned personally and individually undertakes and assumes, jointly and severally with the Customer, the full performance of this agreement, including payment of amounts due hereunder.
This Agreement will be governed by and construed under the laws of the State of Texas, without regard to conflicts of law provisions. The parties agree that the state and federal courts sitting in Texas will have exclusive jurisdiction over any claim arising out of this Agreement, and each party consents to the exclusive jurisdiction of such courts. In any legal proceeding relating to this Agreement, the parties agree to waive any right they may have to participate in any class, group or representative proceeding and to waive any right may have to a trial by jury. Any claim ,controversy, or dispute that arises under or relates to this Agreement (other than claims to collect amounts owed to Agency or claims by Customer alleging breach of this Agreement to recover amounts Customer has paid Agency), including any dispute regarding any Internet Services, any omissions, incorrect phone numbers or other errors, and any Internet Services concerns, shall be referred by the aggrieved party to binding arbitration under the Commercial Rules of the American Arbitration Association.
During the Term of this Agreement, Customer shall not enter into or participate in any competing “pay per click” programs or similar programs offered by companies similar to Agency. Nothing in this Agreement shall be construed to restrict Agency from performing work for competitors of Customer and Customer expressly acknowledges that Agency reserves the right to enter into agreements similar to this Agreement with competitors of Customer. Customer shall inform Agency, in writing, of any change of firm name, address, website URL’s or telephone number that would affect Agency’s or Customer’s performance of its obligations under this Agreement. The change or disconnection of a phone number in an advertisement, or termination of or disruption to Customer’s internet services or change of website address shall not release Customer from its obligations under this Agreement.