In connection with certain products and services (the “Services”) sold to Client by , a (the “Reseller”), a licensed reseller of the Services from #VIDIT, LLC an Arizona limited liability company (“#vidit”), and identified in the attached campaign order form(s) to this Service Agreement (“Service Agreement”) in similar form and substance as that order form attached as Exhibit A hereto and each subsequently executed order form which incorporates by reference the terms and conditions of this Service Agreement (each an “Order Form” and together with the Service Agreement, the “Agreement”). In consideration of the promises, terms and conditions set forth herein, Client agrees as follows:
1. Service Agreement. This Agreement contains the general terms and conditions that apply to all Order Forms except as otherwise set forth therein. Each Order Form will define one specific set of Services, collectively included in the definition of “Services” above, to be provided to the Client by Reseller. The parties may from time to time enter into additional Order Forms that will incorporate the terms of this Agreement by this reference herein. Except as to product pricing, in the event of a conflict between the terms of this Agreement and an Order Form, the terms set forth in the Service Agreement shall control.
2. Acceptance. This Agreement is subject to final audit and review by #vidit and #vidit’s acceptance is conditioned upon verification, at #vidit’s sole discretion, of Client’s credit. Client authorizes #vidit to obtain Client’s credit reports through any and all credit bureaus and to contact Client’s references.
3. Use of the Services. Client agrees that in using Services, Client (a) shall comply with all applicable terms of this Agreement, (b) shall comply with all applicable laws, rules and regulations, including but not limited to advertising, privacy, and disclosure laws including, (c) shall not, nor shall it permit others to alter, circumvent, reverse engineer, recompile, decompile, disassemble, resell, redistribute, pass-through, sublicense, or re-brand all or any part of the Services, and (d) it shall not receive any rights of any kind with respect to the products or services of #vidit or its suppliers except in connection with use of the Services. Any third party costs required to use the Services are the sole responsibility of Client. Furthermore, Client acknowledges that #vidit shall have no responsibility or obligation of any kind to assist Client in seeking state or federal intellectual property protection (i.e., without limitation, trademark registration) for the work product, nor shall #vidit be responsible in otherwise assisting Client in any way in Client’s perfection of Client’s rights in or to the work product. Certain parts of the Services may require access to data and services, and other forms of cooperation, from Client’s third party suppliers with whom #vidit has no contractual relationship; Client agrees that it shall be responsible for facilitating such access and cooperation. Client acknowledges that #vidit shall have no liability for its inability to perform some or all of the Services that is due to a failure by Client’s supplier to provide such access and cooperation.
4. Fees and Billing. Client shall pay all fees as provided in each applicable Order Form. The Services and prices are subject to modification, deletion, or change upon thirty (30) days’ notice from #vidit or Reseller. All invoices to Client will include sales tax, governmental fees associated with the Services, and any other associated payment processing fees. A monthly invoice will be mailed to Client for informational purposes. Client authorizes Reseller to automatically charge Client’s credit card provided below for monthly Service fees on or about the fourth of every month that Services are rendered, unless Client has notified Reseller of a termination of Services pursuant to Section 5 below. A payment will be considered late if Reseller is unable to charge the provided credit card (or has not received a one-time alternate payment arrangement form Client) for the full amount due under any invoice by the thirtieth day of each month that Client is charged for Services. Late payments shall be subject to a service charge of one and one half percent (1.50%) per month (maximum eighteen percent (18%) per annum), or the maximum rate permitted by law. For all past due invoices, Client agrees to pay all costs of collection, including collection agency fees, reasonable attorney fees, and court costs.
5. Term and Termination. The term of this Agreement shall commence on the Effective Date and shall continue until the date that is either twelve (12), after the Effective Date, as provided in each applicable Order Form. #vidit and/or Reseller reserve the right to interrupt or terminate the Services upon five (5) days’ written notice and without liability for (i) non-payment of amounts due to Reseller or #vidit or breach of the Agreement by Client, (ii) legal or fraudulent use or other abuse of the Services by Client, or (iii) upon institution by or against Client of any preceding for relief under the United States Bankruptcy Code, the insolvency of Client, or the appointment of a receiver of Client’s property. Termination of the Services, including Client’s notification of termination by non-renewal, shall not relieve Client of liabilities previously incurred including, but not limited to, monthly fees for the remainder of the term of the applicable set of Services. If work is terminated prior to the completion of the initial scope of work for any reason, #vidit shall be paid the percentage of the Services completed as documented. Unless Client’s #keyword is owned by Client, Client acknowledges that it has no property or other rights to such #keyword and that #vidit reserves the right to re-assign #keywords previously assigned to Client upon expiration or termination of this Agreement. If #vidit terminates without cause as described above, #vidit, as Client’s sole and exclusive remedy, will refund the pro-rata portion of any fee Client may have paid for the portion of the Services not furnished as of the date of termination.
6. Intellectual Property. Client shall own any text, photographs, or other images (collectively the “Materials”) provided by Client to Reseller in connection with Services, and to the extent necessary to provide the Client with such Services, Client herby grants to #vidit and its affiliates a non-exclusive, worldwide, perpetual, irrevocable, sublicenseable, royalty-free license to use such Materials, including, without limitation, the right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform, and/or incorporate in other works, in any form, media, or technology now known or later developed, or display (in whole or in part) Materials on other websites. Materials are accepted by #vidit upon the representation that Client has the right to publish the materials without infringing the rights of any third party and without violating any law. #vidit or its applicable supplier shall own all right, title and interest in and to the Services other than the Materials, including, but not limited to, all software, website designs and formats, graphics, copyright, trademark, service mark, patent, trade secret, data or other intellectual property and proprietary rights in and to the work product and supporting strategies and communications in all media now known or later devised, to the full extent provided under United States and international law, that are used to provide the Services (“#vidit Property”). Following any termination of the Services, all #vidit property will remain the property of #vidit or its applicable suppliers. #vidit shall not use or disclose to third parties nonpublic personal information except as necessary in order to provide the Services to Client. Client agrees to indemnify and hold harmless #vidit its affiliates, officers, directors, employees, agents, consultants, partners, and suppliers for, from and against any and all claims, liabilities, losses, causes of action, judgments, costs and expenses, including but not limited to reasonable attorney’s fees and court costs, related to or arising from Client’s or Reseller’s breach of this Agreement.
7. Limits of Liability. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND #VIDIT MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, CONCERNING SUCH SERVICES, INCLUDING, WITHOUT LIMITAION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR FITNESS FOR A PARTICULAR PURPOSE. Client acknowledges that the Service may be interrupted, curtailed, or degraded due to internet capacity or equipment limitations, equipment modifications, upgrades, relocations or repairs. Performance of Services by Reseller and #vidit shall be pursued with due diligence in all requirements hereof. However, #vidit shall not be liable for any loss or damage for delay or non-performance due to causes not reasonably within its control. In the event of any delay resulting from such causes, including, but not limited to an event of “Force Majure,” the time for performance hereunder shall be extended for a period of time reasonably necessary to overcome the effect of such delays. In the event of any delay or non-performance caused by such uncontrollable or unforeseeable forces, Reseller or #vidit shall promptly notify the Client in writing of the nature, cause, date of commencement thereof and the anticipated extent of such delay, and shall indicate whether it is anticipated that completion dates would be affected thereby. Notwithstanding the foregoing, Client may terminate this Agreement in the event any delay or non-performance under this section shall continue for longer than five (5) business days and shall not be subject to the cancellation provision set out in Section 5, with compensation to be provided for those Services completed prior to termination and #vidit will not be held liable for incomplete tasks or any damages associated with such. #VIDIT’S LIABILITY HEREUNDER, IF ANY, SHALL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE MONTHLY SERVICE FEE PAID BY THE CLIENT WITH RESPECT TO THE AFFECTED SERVICE FOR THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRED. IN NO EVENT SHALL #VIDIT ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, SUPPLIERS, OR OTHER THIRD PARTIES IDENTIFIED IN ANY DULY EXECUTED ORDER FORM HERETO BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DASAGES (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTACT, TORT, STRICT LIABILITY, OR OTHERWISE, ARISINGOUT OF THE PERFORSANCE OF THIS AGREEMENT OR CLIENT’S USE OF THE SERVICES.
8. Data Collection and Transmission. Client acknowledges that certain aspects of the Services may require #vidit to access Client’s Social Media accounts to poll and write-back data files and fields as described in an applicable Order Form. Client represents to #vidit that Client will provide, and has all rights and authorizations required to provide #vidit with such systems access and permissions as #vidit reasonably requires to perform the Services. #vidit shall collect or transmit data obtained from such access in accordance with #vidit’s then-standard data collection and write-back procedures and configurations. Client acknowledges that data, including email, electronic communications and personal financial data, may be intercepted or accessed by unauthorized third parties when communicated between Client and #vidit using the Internet, other network communications facilities, telephone or any other electronic means. Client agrees to use software produced by third parties, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by #vidit. Until notified otherwise by #vidit, Client agrees to use software that supports the Secure Socket Layer (“SSL”) protocol or other protocols accepted by #vidit and to follow #vidit’s log in procedures. Client acknowledges that #vidit is not responsible for notifying Client of any upgrades, fixes or enhancements to any such software or for any compromised data transmitted across computer networks or telecommunications facilities, including, but not limited to, the internet.
9. Miscellaneous. This Agreement does not create a joint venture, partnership, employee, agency, franchise, or representative relationship between or among Client and #vidit or among #vidit and Reseller. Anything to the contrary herein notwithstanding, Client acknowledges that all or a portion of the Service may consist of products or services provided to #vidit by third party suppliers. Client agrees that #vidit’s suppliers shall be direct and intended third party beneficiaries with rights of enforcement against Client with respect to Client’s obligations in the Sections titled Use of the Services and Intellectual Property to the extent provided in such supplier’s agreement with #vidit. Client may not assign this Agreement without #vidit’s prior written consent. This Agreement constitutes the entire agreement and supersedes any and all prior agreements between the parties. This Agreement may be amended only by written agreement (in tangible or electronic form) between the parties. Any controversy or claim arising out of or relating to this Agreement or its breach, with the exception of injunctive relief sought by #vidit shall be settled by arbitration in the State of Arizona before a single arbitrator in accordance with the then-current commercial rules of the American Arbitration Association. The cost of arbitration, including arbitrator fees, shall be borne equally by the parties. This Agreement shall be construed and enforced in accordance with the laws of the State of Arizona without regard to its conflicts of law’s provisions. The parties agree that venue for any action seeking injunctive relief, to enforce or interpret this Agreement or to enforce an arbitration award shall lie in the state and federal courts located in the State of Arizona, if Client is the claimant and in the state and federal courts located in the county in which Client’s business address is located if #vidit is the claimant, and the Parties herby consent to the jurisdiction of such courts. For disputes related to domain name ownership, Client agrees to be bound by the ICANN Domain Name Dispute Resolution Policy. Client and #vidit acknowledge that they have the right, power, legal capacity and authority to enter into this Agreement and perform such obligations as arise hereunder and that no further approval or consent of any person or entity is required for them to enter into and perform the obligations contained herein. The Parties shall be entitled to rely upon signatures on copies of this Agreement transmitted by facsimile. Photocopied or electronic reproductions of this Agreement may be used for all purposes as originals, except that in the event of any disparity between such a copy and an original, the original shall control. This Agreement may be signed in counterparts and/or by exchanging PDF signature pages and/or by using an electronic contract tool (such as EchoSign or DocuSign), each of which will be deemed an original, and all such counterparts together constituting one and the same agreement. This Agreement shall become effective on the Effective Date stated on the signature page hereto. Until this Agreement becomes effective, it shall have no effect and no party shall have any right or obligation hereunder.IN WITNESS WHEREOF, Client has executed this Agreement with an effective date of , 2017 (the “Effective Date”), and each agree to the above terms and acknowledge receipt of a copy of this Agreement.