AMSI Terms and Conditions

1. DEFINITIONS.

 

As used in these Terms and Conditions, the following capitalized terms and phrases shall have the definitions set forth below:

 

“Actual Start Date” means the first date that the Products will be provided. For the avoidance of doubt, the Actual Start Date with respect to Paid Media-Based Products will be the first date that Ads begin running with one or more Publishers.  The Company will spend the authorized monthly budget between the Actual Start Date and the end of the calendar month.

 

“Ads” shall refer to one or more advertisements submitted by Company as part of Paid Media-Based Products.

 

“Advertising” means the placing of Ads by Company with Publishers on behalf of Customer.

 

“Agreement” means, collectively, these Terms and Conditions (as may be modified as set forth above) and all Order Forms.

 

“Customer Products & Services” shall refer to the various business categories that Customer has selected to promote through the Products.

 

“DMS” shall refer to the Customer’s Dealer Management System.

 

“Fees” means, collectively, Subscription Fees and any Set-Up Fees.

 

“L2TMedia Technology” means those Products, including but not limited to the Tracking Technology (as those terms are defined herein) which contain or use software and other technology of L2TMedia or its licensors.

 

“Order Form” means a document signed by Customer, and accepted by Company, setting forth those Products which Customer is purchasing from Company, the cost of such Products for each Subscription Term, the Target Start Date and such other terms and conditions as set forth therein.

 

“Paid Media-Based Products” means those Products with respect to which Company pays Publishers for Advertising on behalf of Customer, including Paid Search, Display, Video Advertising and Paid Social.

 

“Performance Tracking Codes” means code streams or scripts added to a Customer’s website in connection with the provision of the Products.

 

“Products” means any and all Company products or services which Customer has contracted for pursuant to an Order Form, which may include some or all of the following: Search Engine Optimization (SEO), Paid Search, Display, Dynamic Display, Video Advertising, Paid Social, Reputation Management and Social Impact Services.

 

“Publishers” shall refer to one or more online businesses where Company shall place Advertising  on behalf of Customer.

 

“Set-Up Fees” means a one-time charge to establish one or more Products as set forth in an Order Form.

 

“Subscription Fees” means the Company’s charges for the Products for each Subscription Term, as set forth in an Order Form, and as subject to adjustment as provided in Section 4.

 

“Subscription Term” means each successive period, as provided in Section 3, during which the Products will be provided.

 

“Target Start Date” shall refer to the day Customer has requested that provision of the Products commence.

2. CONTRACTING FOR PRODUCTS.

 

(A)      Customer has agreed to purchase, and Company has agreed to provide to Customer, a subscription to those Products indicated on an Order Form during the Subscription Terms. Customer’s execution of an Order Form is its authorization for Company to enter into such agreements on behalf of Customer with third parties as necessary to provide the Products. The Order Form will stipulate Customer’s requested Target Start Date for Products ordered. Customer acknowledges that, for Paid Media-Based Products, Company requires receipt of the executed Order Form at least ten (10) business days prior to the Target Start Date of such Products. Customer agrees that the Company shall have no liability or be deemed in breach of this Agreement (and no refund of Fees shall be due) if the Actual Start Date is later than the Target Start Date and the specified monthly budget is spent between the Actual Start Date and the last day of the month.

 

(B)       Customer acknowledges that Company’s provision of the Products is subject to the following: (i) Customer’s provision to Company of reliable, accurate, current and complete information as required by Company to provide the Products, (ii) Customer’s making of reasonably timely decisions and obtaining of required management approvals and (iii) Customer following the reasonable directions and instructions provided to Customer regarding the Products.

3. SUBSCRIPTION TERM AND TERMINATION.

 

(A)      The initial Subscription Term shall commence on Company’s acceptance of an Order Form and shall continue for thirty (30) days from Customer’s Target Start Date. The Subscription Term shall then automatically renew for each calendar month thereafter until the Order Form is terminated by either Customer or Company on no less than 30 days’ prior written notice. Notwithstanding the foregoing, Company may stop providing a Product at any time due to the actions of a Publisher, upon written notice to Customer. In the event that the provision of any Product is stopped without cause by Company prior to the end of a Subscription Term, Customer’s remedy and Company’s liability  for such termination  shall be Company’s issuance of a refund in the amount of the unused portion of the Subscription Fee for the applicable Product for the then-current Subscription Term. The refund shall be in the form of a credit against future Subscription Fees unless the Subscription Term is not renewed, in which case the refund will be paid within ten (10) business days after the end of the then-current Subscription Term.

 

(B)       Upon termination of the Agreement, (i) the provision of and Customer’s access to the Products shall immediately cease, (ii) Customer’s My Access Point account password shall be disabled and (iii) and all related information, files and content associated with or inside its account (or any part thereof) shall be deleted. The provisions of Sections 11(A), 15, 16, 23 and 24 shall survive any termination or expiration of this Agreement.

4. FEES AND PAYMENT TERMS.

 

(A)      In consideration of Company’s provision of the Products, Customer agrees to pay Company the Fees. Company will issue an invoice for Products on a monthly basis commencing on the date of the Order Form for the first month of the initial Subscription Term and, thereafter, in advance, on the first business day of each calendar month during the Subscription Term. Payment is due on receipt of invoice. Each invoice will be for the full Subscription Fee for the Products for the Subscription Term and any Set-Up Fees or other amounts set forth in the Order Form.  Subscription Fees will not be pro-rated to the extent that the Actual Start Date differs from the first of the calendar month provided that the budget established by Customer is spent between the Actual Start Date and the end of the calendar month. All charges for Services are payable in U.S. dollars and are exclusive of any sales, use or similar applicable taxes.  Customer shall promptly pay all such taxes and any associated interest and penalties.

 

(B)       Any payment not received from Customer within fifteen (15) days after the date of the invoice may accrue, at Company’s discretion, late charges at the rate of twelve percent (12%) per annum, or the maximum rate permitted by Law, whichever is lower, after such fifteenth (15^th) day until the date paid. If Customer’s account is more than thirty  (30) days past due, Company reserves the right to suspend the provision of Products.

5. CUSTOMER WEBSITE.

 

In connection with the provision of the Products, it will be necessary for Company to place Performance Tracking Codes on Customer’ website.  Customer acknowledges that Company is not a website provider and that Company will rely upon Customer’s website provider for placement of the Performance Tracking Codes and for ensuring that the Performance Tracking Codes are not removed.  Company will not be liable in the event that Customer’ website provider fails to assist in placement of the Performance Tracking Codes or removes the Performance Tracking Codes.  Furthermore, in the event that Customer changes website providers, website URLs or website layout, Customer agrees to provide advance written notice to Company of such changes.

6. ADVERTISING INFORMATION, MATERIALS & MODIFICATIONS.

 

(A)      Company shall determine which Publishers to use in connection with the Paid Media-based Products.  Customer acknowledges that Company does not produce, operate or transmit the Internet sites or services on which Ads may appear or control how the Ads are positioned.  In addition, Customer agrees that the rules for displaying Ads are controlled by the Publisher and, as such, Company makes no guarantee about when or where Ads will be displayed. Company shall use its reasonable commercial efforts to prevent failure of proper performance by Publishers with which Company has entered into agreements on behalf of Customer, but shall not be liable or responsible for such failure of performance or for any delay, omission or error in any Ad.

 

(B)       All contents of Ads are subject to Company’s approval.  Company reserves the right to reject or cancel any Ad, URL link, website copy or Publisher position commitment, at any time, for any reason whatsoever.

 

(C)       Customer agrees that Company may make modifications to Ads and further understands that once Ads are delivered to Publisher, Customer may be limited in its ability to make further modifications to said Ads.  Customer hereby grants to Company a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute the Ads and any derivative works based thereon created by Company as well as the right to sublicense all rights necessary for the Ads to be published by the Publisher on behalf of the Customer.

 

(D)     Customer understands that Company is under no obligation and may not be able to provide any samples of Ads in the context of any Publisher’s website.

7. STATISTICS AND REPORTING.

 

Company makes no guarantee with respect to usage, visit, or cost per visit statistics for any Products.  In addition, Company makes no representation as to any data derived from sources that use Google Analytics codes, conversion codes, or remarketing tags from which reporting accuracy is dependent on proper code placement by the website provider.

8. LOCAL CITATION SERVICE.

 

Company shall determine, based on its expertise, which local citation websites to use in connection with Products ordered.  Customer agrees to provide Company with access to their local citations in order to update listings.  In the event that access to a Customer’s local citations cannot be granted, Company will inform Customer.

9. OEM COMPLIANCE.

 

Company will use its reasonable commercial efforts to provide the Products in accordance with Customer OEM’s compliance guidelines Company is not responsible for submitting any documentation directly to the OEM for co-op reimbursement.

10. MANAGED DATA SERVICES.

 

In order to ensure optimal performance of certain Products, Company must have access to Customer’s DMS, which is hosted by a third party vendor (the “DMS Vendor”). Customer hereby consents to Company’s and the DMS Vendor’s access to and use of information and data from the DMS (“DMS Data”) to provide the Products and otherwise exercise its rights hereunder, and shall provide such other written consents or authorizations as may be needed in connection therewith. Company shall be entitled to appoint an agent (“Company Agent”) to access the Customer’s DMS on Company’s behalf, and the foregoing consent shall apply to the Company Agent.  Company shall agree to abide by the terms of the Non-Disclosure Agreement (the “NDA”) attached hereto and incorporated herein by reference

11. COLLECTION OF DATA.

 

(A) In connection with the provision of Products, Company shall be entitled to collect, retain, use, distribute and publish, any data or other information collected or otherwise generated or obtained by Company regarding or in connection with the use or results of the Products or the activity resulting from this Agreement (including, without limitation, the DMS Data, and information regarding “clicks,” “click-throughs,” searches or queries, the percentage of searches that resulted in “hits,” visits to the target website, sale conversions, etc.) (collectively, “Product Data”) (i) for purposes of providing the Products to Customer only. In connection with the foregoing, Customer hereby consents to Company placing its “L2T Conversion Tracking Technology” (“Tracking Technology”) on Customer’s website allowing Company to track Customer website users and visitors and their related use of the Customer website.

 

(B) Customer shall at all times maintain a consumer facing privacy policy that complies with all applicable law including the Gramm-Leach-Bliley Act and its implementing regulations, and to the extent applicable, the privacy laws of any state, Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”), and any other relevant privacy laws Canada or of any province of Canada or other relevant jurisdiction) and provides clear and comprehensive notice of and permits (i) the collection of data by and from Customer’s DMS and (ii) the Company’s (or Company’s Agent’s) collection and use of Product Data (including DMS Data) and the Tracking Technology and the data collected therefrom. Customer will also include notice in such privacy policy as required in Customer’s agreement regarding Google Analytics.

 

(C) Each party  shall provide the other party with prompt notice in the event of known privacy or security breaches relating to the Product Data. Customer shall have the right to terminate the Agreement for Company noncompliance with any applicable privacy laws or regulations relating to the Agreement.

12. OWNERSHIP OF L2TMEDIA TECHNOLOGY.

 

(A)      Company (or, where applicable, Third Party Licensors, defined below) owns, and shall retain, all rights, title and interest in and to the L2TMedia Technology, and all intellectual property rights therein. Customer will not, and will not allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the L2TMedia Technology; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the L2TMedia Technology, (iii) transfer, lend, lease, sublicense, allow access to or pledge the L2TMedia Technology to or by third parties; (iii) use the L2TMedia Technology in a service bureau or outsourcing manner; or (iv) remove any proprietary notices on or in the L2TMedia Technology.

 

(B)       To the extent that L2TMedia Technology contains portions of program code (“Third Party Code”) owned by third party licensors (“Third Party Licensors”), such Third Party Licensors will be entitled to enforce these Terms and Conditions as relates to such Third Party Code as an intended third party beneficiary and the obligations of Customer with respect to such Third Party Code cannot be modified or terminated without the written consent of such Third Party Licensors. ALL THIRD PARTY LICENSORS DISCLAIM ALL WARRANTIES RELATING TO THE THIRD PARTY CODE, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

13. CUSTOMER REPRESENTATIONS AND WARRANTIES.

 

Customer represents, warrants and covenants that: (i) it has the right to enter into this Agreement, to perform its obligations hereunder and to grant the rights granted herein; (ii) it holds or has obtained all necessary rights, licenses and consents necessary to permit the use, reproduction, distribution, transmission, display and creation of derivative rights of the Ads and any other materials delivered by Company pursuant to this Agreement and (iii) none of the Ads will contain material that is libelous, defamatory, pornographic, or contains or will contain any other material that would violate any applicable laws or governmental rules or regulations.

14. COMPANY WARRANTIES.

 

(A)      Company warrants that: (i) it has the right to enter into this Agreement and to perform its obligations hereunder and (ii) the Products will be provided in a good and workmanlike manner.  Customer agrees and acknowledges that Company makes no guarantee, financial or otherwise, with respect to the results of any Product, and that Company cannot assure Customer that Ads will be placed for all Customer Products & Services or that any particular result will be achieved.

 

(B)      EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS OR ANY SERVICES HEREUNDER. WITHOUT LIMTING THE GENERALITY OF THE FOREGOING, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND AS TO THE LEVEL OF SALES, PURCHASES, CLICKS, SALES LEADS OR OTHER PERFORMANCE THAT CUSTOMER CAN EXPECT FROM THE PRODUCTS OR THAT THE PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE PRODUCTS AND ANY SERVICES.

15. INDEMNIFICATION.

 

Each Party (the “Indemnifying Party’) agrees to indemnify, defend and hold the other party and its subsidiaries, affiliates, officers, agents, or other partners, and employees (the “Indemnified Parties”), harmless from and against any and all third party claims, demands, causes of action, liability, loss or damage, including the Indemnified Party’s reasonable legal fees and expenses in connection therewith, arising out of or related to any (i) breach (or alleged breach) of any of the Indemnifying Party’s representations, warranties or covenants herein, (ii) any claim that Ads or other materials provided by the Indemnifying  Party under this Agreement infringes, misappropriates or violates any copyright, trade secret, trademark, right of privacy or other intellectual property right, (iii) any of The Indemnifying Party’s Products & Services, (iv) the operation in any respect of Customer’s website, including any breach or violation of the Customer’s privacy policy or the (v) breach of any of Customer OEM’s compliance guidelines.

16. LIMITATION OF LIABILITY.

 

BUSINESS EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES REGARDLESS OF THE CAUSE OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SHALL HAVE NO LIABILITY FOR DAMAGES RESULTING FROM: THE USE OR THE INABILITY TO USE THE SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE.

 

IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR IN CONNECTION WITH ANY CAMPAIGN, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM BUSINESS FOR SUCH CAMPAIGN.  In the event that Company fails to publish an Ad in accordance with this Agreement, or in the event that Company fails to spend, on behalf of Business, the full Campaign Budget by the Actual End Date, or in the event of any other failure, technical or otherwise of such Advertising, the sole liability of Company and exclusive remedy of Business shall be limited to the issuance of a credit. In no event shall Company be liable for any act or omission, or any event directly or indirectly resulting from any act or omission, of third parties. Business acknowledges that Company has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties. The limitation of liability set forth in this Paragraph 16 shall not apply to Company’s indemnity obligations under Paragraph 15 for acts or omissions of the Company which constitute gross negligence, intentional misconduct, and/or violation of state or federal law, rule, or regulation.

17. FORCE MAJEURE.

 

Company shall have no liability for any failure or delay in performing this Agreement resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, acts of Publishers or any third party, or any other condition affecting production or delivery in any manner beyond the control of Company (a “Force Majeure Event”). In the event of a Force Majeure Event, Company shall notify Customer in writing as promptly as is practicable of the occurrence and cessation thereof.  Performance of the affected obligations of a Party will be extended for a period equal to the duration of the Force Majeure Event.

18. CHOICE OF LAW.

 

This Agreement shall be governed by the laws of the State of Illinois, without regards to conflicts of law principles.

19. JURISDICTION AND VENUE.

 

Any action, suit or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced and prosecuted only in a federal or state court sitting in Cook County, Illinois, and the Parties each consent to the jurisdiction of such court.

20. WAIVER.

 

Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Any waiver in a particular instance shall not constitute a waiver of the same or different rights or breaches in any other instance.  Failure, neglect or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not prejudice such Party’s right to take subsequent action.

21. SEVERABILITY OF TERMS.

 

If any term, condition or provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, then it is the intent of the Parties that such court apply a rule of reasonableness and modify the provision in question so it will remain in effect to the greatest extent permitted by law.  In the event a court finds such procedure to be inappropriate, then such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

22. TRANSFERABILITY.

 

Neither Company nor Customer may not assign this Agreement or delegate or otherwise transfer any of its rights, obligations or duties of performance hereunder, and any purported assignment, delegation or other transfer shall be null and void.  Neither Customer nor Company may  assign this Agreement except to a successor-in-interest to the business of Company (or the portion of the business which performs this Agreement). Company may subcontract or delegate its obligations hereunder to the extent that such subcontracting or delegation is of a type which Company undertakes in the normal course of its operations. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.

23. NO USE OF DEALER’S NAME.

 

Service Provider agrees that it shall not use Dealer’s name or trademarks or mention or describe this Agreement or its relationship with Dealer in any press release, advertising, marketing or promotional materials, or any other publications or public disclosure without Dealer’s prior written consent.

24. NOTICES.

 

Any notice, demand or consent to be given hereunder shall be in writing and delivered personally or sent by facsimile transmission (provided a copy is contemporaneously sent by regular mail), registered or certified mail, postage prepaid, or overnight courier service, to the address set forth below the appropriate Party’s signature, or such other address as either Party may designate in accordance with this Section. Notices shall be deemed received at the earlier of actual receipt, three business days following mailing, one business day after facsimile transmission (provided automatic confirmation of transmission is received by the sender) or one business day after deposit with an overnight courier service.

25. ENTIRE AGREEMENT.

 

The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. The Agreement supersedes all prior agreements, proposals or representations, written or oral, concerning its subject matter. In the event of a conflict between the provisions in these Terms and Conditions and an Order Form, the provisions in the Order Form(s) shall take precedence and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (other than an Order Form) shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void. No modification or amendment of any provision of the Agreement shall be effective unless in writing and signed by the Party against whom the modification or amendment is to be asserted.

 

[End of Terms and Conditions of Service]