Client authorizes Vivacity, or Vivacity’s merchant services provider, to store Client’s financial information for the purpose of facilitating payment to Vivacity. It is Client’s responsibility to notify Vivacity, in writing, of any changes or updates to Client’s financial information, and Client is solely responsible for its failure to do so. All fees must be paid in United States dollars. Client is solely responsible for any applicable taxes. All fees are due in accordance with the agreed upon fee schedule, or immediately upon Client’s receipt of invoice, as applicable. Client agrees that any setup fees or one-time services payments are nonrefundable. 8. LATE PAYMENT: Payments made by billing of a credit card or debiting of a bank account are intended in part to avoid the inconvenience and cost to both parties of late or missed payments. However, it is Client’s responsibility to ensure that Vivacity has the most up-to-date credit card or bank account information, and that such methods are viable for payment of the fees due to Vivacity for the Services. In the event of a failure of the payment method authorized by Client, and one or more payments are made later than the due date, such late payments are subject to a late fee equal to the greater of $25 or 6% of the total payment due, but not to exceed the maximum amount allowed by applicable law. In addition to late fees, Client agrees to pay all attorneys fees and costs incurred by Vivacity for late payment collection efforts. 9. RECURRING PAYMENTS AND TERM OF AGREEMENT: Billing will occur in the form of a one-time payment or an automatically recurring monthly payment, as set forth in the specific product/service terms and conditions for the Service provided. IF BILLING IS TO INCLUDE AN AUTOMATICALLY RECURRING PAYMENT:
- All payment for Services will be paid in advance on a monthly basis.
- Following the current contract term for any particular Service, this Agreement with respect to such Service shall automatically renew for successive one-month terms on the monthly anniversary date of Client’s initial acceptance of these Terms and Conditions.
- Client may cancel the automatically recurring payment, including the Services associated therewith, by providing notice to Vivacity by emailing Client’s name, business name, email address, phone number, physical address, and domain, to [email protected], with “Cancel Service” in the subject line. Provided such notice is received by Vivacity not later than 5:00 pm USA Eastern Standard Time at least (3) three business days in advance of the date on which the next automatically recurring payment is scheduled to be made, then the next automatically recurring payment will be cancelled and the Services terminated at the end of the then-current term.
- In the event such notice is received closer than three (3) business days to the next automatically recurring payment, then the next automatically recurring payment will still be made as a final payment, the Services shall continue for an additional renewal term, and termination will instead occur at the end of that additional renewal term.
- No pro-rated refunds for partial terms or months will be provided.
For clarity, if a Client were to engage Vivacity for Services with a 365 day contract term, and the initial sign-up date were August 1 of a given year, if Client wished to cancel the Services at the end of the contract term without incurring an additional month’s charge, Client would need to provide written notice of cancellation on or before July 29 – assuming July 29, 30, and 31 were business days. One-time fee offerings have no continuing term because the same are provided up front, the term thereof having been fulfilled upon initial delivery of the Service to Client. 10. EARLY TERMINATION FEE: In the event Client chooses to terminate services prior to completion of the contract term, and did not pay a setup fee when the Services were initially obtained, then Client agrees to pay an early termination fee, the amount of which will be determined by the total number of months in which Client has received and paid for the Services, prior to receipt by Vivacity of Client’s request for termination, as follows: If Client received and paid for the Services for less than three (3) full months, then Client will pay an early termination fee equal to one hundred percent (100%) of Client’s total monthly service fee(s) for the Services being terminated. If Client received and paid for the Services for at least three (3) full months, but less than five (5) full months, then Client will pay an early termination fee equal to seventy-five percent (75%) of Client’s total monthly service fee(s) for the Services being terminated. If Client received and paid for the Services for five (5) full months or more, then Client will pay an early termination fee equal to fifty percent (50%) of Client’s total monthly service fee(s) for the Services being terminated. The number of months will be determined from the actual date of Client’s initial sign-up; from that date to the same calendar day of the following month will be one (1) month, and so forth. 11. MODIFICATION: Client understands that Vivacity may modify its standard terms and conditions and service offerings from time to time and that Vivacity reserves the right to adjust the pricing of such services, effective upon the next automatic renewal date of the affected Service(s), after not less than thirty (30) days’ advance written notice to Client. Following the fulfilment of initial contract terms, if the contract does not provide for automatic renewal for an additional term of more than one month, then the contract shall be considered month-to-month and Client may be subject to revised terms and conditions and/or pricing following receipt of such notice. Client is encouraged to enter a long-term contract or contracts to fix pricing, terms, and conditions. 12. ACCESS: Client is authorized to access Vivacity -owned, operated, or hosted websites that require log in or account information solely to manage Client’s account(s). Client agrees that it will not use the site or any content therein for any other purpose and that it will not disseminate or distribute any of said information. Client’s right to access its account with Vivacity is personal to Client and non-assignable and is subject to any limits established by Vivacity. Client agrees that it will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access Client’s account with Vivacity or to monitor or copy Vivacity’s website or the content contained therein, except those automated means expressly made available by Vivacity. 13. LATENCY: Client understands that, any information or data provided by Client to Vivacity may not be processed on a real-time basis and may be subject to the latency of the Internet, the Vivacity systems and network of third-party partners and search engines. 14. OWNERSHIP OF NON-CLIENT PROPERTY. Title and full ownership rights in and to the Services, together with any and all ideas, concepts, campaign optimizations, computer programs, and other technology supporting or otherwise relating to Vivacity’s operation of the Vivacity network, the Vivacity bid management, task management, and optimization platform and website(s) (collectively, the “Vivacity Materials”), shall remain at all times solely with Vivacity and/or with the respective outsourced service provider or author, or with Vivacity’s Promotional Partner if applicable and if Promotional Partner was the owner of the same. Client acknowledges that it has not acquired any ownership interest in the Vivacity Materials and will not acquire any ownership interest in the Vivacity Materials by reason of this Agreement. 15. CLIENT’S SITE: Unless Client’s website is designed and provided by Vivacity as a part of its Services, Client hereby acknowledges that neither Vivacity nor its Promotional Partner (if applicable) is responsible for the development, maintenance, and operation of the Client website(s), nor for any content or other materials that appear on, and all visitors to, the Client website(s), nor is Vivacity or its Promotional Partner responsible for order entry, payment processing, shipping, cancellations, returns, or customer service concerning orders placed on Client’s website(s). Client further warrants that it will not add to or place upon its site any Vivacity or Promotional Partner owned or licensed content, including but not limited to any Vivacity search listings, except pursuant to a separate signed affiliate agreement with Vivacity. 16. CLIENT REPRESENTATIONS AND WARRANTIES: Client represents and warrants to Vivacity, and to its Promotional Partner if applicable, that for and continuing throughout the term of this Agreement:
- this Agreement constitutes a valid, binding, and enforceable agreement in accordance with its terms;
- Client is responsible for its own responsiveness to communications and inquiries from Vivacity and acknowledges that any lack of responsiveness could materially impact the effectiveness of the Services;
- information or data that Client (including its agents or representatives) has provided or will provide for Services is and will be both accurate and complete to the best of Client’s knowledge;
- Client is the authorized owner or representative of the website(s) for which Services will be performed unless the website to be promoted by the Services is designed and provided by Vivacity; and,
- Client’s website does not violate any applicable law or regulation; does not infringe in any manner any third party rights, including, without limitation copyright, patent, trademark, trade secret, or other intellectual property right or right of privacy or publicity; is not false or misleading; has not and will not result in any consumer fraud, product liability, breach of contract, injury, damage, or harm of any kind to any person or entity; is not defamatory, libelous, slanderous, or threatening; is free of viruses; does not contain, promote, or offer any form of spyware, adware, or other advertising or information collection software; and/or does not contain, link to or promote any of the following: violence, hate crimes (whether racial or otherwise), illegal activities, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- CLIENT COVENANTS: Client further agrees to perform as follows: Client will not hold Vivacity or its affiliates, or Promotional Partner or its affiliates, if applicable, liable or responsible for the activities of visitors who come to Client’s website(s) through Services. In the event that Client has been referred to the Services by or through an Vivacity partnership promotion, such that Promotional Partner is a beneficiary of these terms and conditions, Client agrees that Vivacity may share all data it obtains, including product performance data, with Promotional Partner, and Promotional Partner shall have the same rights to access and use said data as Vivacity itself. Client agrees that if the Services ordered from Vivacity include paid search management, and if the paid search management is being performed through an existing account rather than Vivacity’s account, then Client will grant Vivacity exclusive administrative access to said account. Client may retain read-only access, but will allow Vivacity to perform the Services without shared administrative rights. Client acknowledges that this is necessary for Vivacity to effectively perform the Services. Client will not, for a period of one (1) year following the date on which the term of this Agreement ends, either (a) solicit for employment any employee or independent contractor employed by Vivacity, (b) advise or encourage any employee or independent contractor employed by Vivacity to terminate employment with Vivacity, or (c) knowingly interfere or attempt to interfere with the employment relationship between Vivacity and any of its employees or with any relationship between Vivacity and any independent contractor who performs services for Vivacity . Notwithstanding the foregoing, general solicitations for employment (i.e., through job boards or general advertisements) and any employment relationship established as a result of responses to general solicitations for employment shall not be deemed a violation of this Client Covenant. If Client sells or promotes adult materials, alcohol or tobacco products, controlled substances, prescription medications or over-the-counter medications, or other age-restricted products and/or services, Client will: (i) have age verification on its sites’ home page and in the sales process in compliance with all applicable laws and regulations; and (ii) shall not offer such products and/or services in jurisdictions in which they are prohibited or are in any way restricted; and (iii) agrees that Client will indemnify Vivacity against any claims, losses, damages, fines, penalties, or the like which may be sought, assessed, or imposed as a result of Client’s sale or promotion of such products or services. 18. CLIENT INDEMNIFICATION OBLIGATIONS: Client agrees to indemnify, defend, and hold harmless Vivacity , its distribution partners including Promotional Partner if applicable, their respective licensors and licensees, and affiliated companies, and any of their respective officers, directors, employees, representatives, and agents (collectively the “Indemnified Parties”), from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings (collectively being referred to herein as a “Claim”) for, including without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with Services performed on behalf of Client, Client’s website(s) or contents therein, Client’s conduct, acts or omissions, or any alleged or proven breach by Client of any term, condition, agreement, representation, or warranty herein. This indemnification excludes any Claim that arises solely from the acts or omissions of an Indemnified Party, as to that party. An Indemnified Party will notify Client of any claim, action, or demand for which indemnity is required in the reasonable opinion of Indemnified Party, and will cooperate with Client at Client’s expense. An Indemnified Party shall have sole discretion to accept or reject the law firm Client chooses to defend the Indemnified Party, which firm must be experienced in defending similar claims. Client may not settle any lawsuit or matter relating to the culpability or liability of an Indemnified Party without the prior written consent of that party. An Indemnified Party will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense. Without limiting any rights and remedies hereunder or under applicable law, Vivacity shall have the right to set off any liability of Client to Vivacity with respect to a Claim against any amounts held on deposit with Vivacity by Client. 19. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER: Client acknowledges and agrees that it will not hold Vivacity, or Promotional Partner if applicable, liable for any errors in content, omissions, consequences, damages, costs, refunds, or rebates of any kind arising from any interruption of service or other unavailability of the Internet or website(s) in which the advertisements are published for whatever reason. Client further acknowledges and agrees that errors or mistakes in the performance of the Services, including but not limited to misspellings or miscommunications, do not create a right to refund for the Client. Client will give Vivacity timely notice and allow Vivacity a reasonable opportunity thereafter to cure any identified errors or omissions. Vivacity makes no representations or warranties relating to the results of Services, including without limitation, the number of impressions, click-throughs, or leads and any promotional effect or return on investment thereof. As Vivacity relies on third parties for certain data, Vivacity makes no guarantees regarding the accuracy, reliability, or completeness of any such data, including but not limited to usage statistics. In no event shall Vivacity or Promotional Partner if applicable, be responsible for any consequential, special, lost profits, or other damages arising under this Agreement. Without limiting the foregoing, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action, fire, flood, earthquake, power failure, riot, explosion, labor, or material shortage, carrier interruption of any kind or work slowdown. 20. ADDITIONAL ASSISTANCE: In the event Client requests or purchases any additional assistance, which may include, without limitation, adding tracking codes or making other changes to Client’s website(s), in connection with Service, then Client agrees to provide Vivacity with access to perform the requested or purchased additional assistance. Client acknowledges that any additional assistance provided by Vivacity is also subject to the limitations of liability in this Agreement. 21. SUCCESSORS AND ASSIGNS: Subject to the limitations set forth herein on assignment of this Agreement or the rights hereunder by Client, all of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, if any, successors, and assigns. Client agrees that any of its agents, representatives, employees, or any person or entity acting on its behalf with respect to the use of the Services, shall be bound by, and shall abide by, these Terms and Conditions. 22. CHOICE OF LAW; EXCLUSIVE VENUE: This Agreement shall be construed in accordance with the laws of the state of Lebanon, and the parties agree that should any dispute arise concerning this Agreement, venue shall be laid exclusively in a court of competent jurisdiction in Beirut, Lebanon. 23. HEADINGS: Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof. 24. WAIVER: Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver. No waiver of any breach or default of this Agreement by either party hereto shall be considered to be a waiver of any other breach of default of this Agreement. 25. ENTIRE UNDERSTANDING: This document, with any other materials, documents, understandings, or agreements incorporated by reference herein, and any exhibit, schedule, or other supplementary document attached hereto, constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and cancelled in their entirety and are of no further force and effect. 26. ATTORNEYS’ FEES: In the event a dispute arises between the parties hereto, then the prevailing party in such dispute, whether or not a final decision is ultimately rendered by the court, shall be entitled to receive its attorneys’ fees reimbursed from the non-prevailing party. 27. NO THIRD PARTY BENEFICIARIES: The covenants, undertakings, and agreements set forth in this Agreement are solely for the benefit of and enforceable by the Parties, and where indicated, Promotional Partner, or their respective successors or permitted assigns. 28. SURVIVAL: The sections of this Agreement that address or govern matters or circumstances that could occur after termination of this Agreement shall be interpreted to survive any such termination. 29. SEVERABILITY: In the event that any clause, term, or provision of this Agreement is found to unenforceable or otherwise disfavored under law or public policy such that a court of law would not enforce the same, then the same shall be severed from this Agreement and the remainder of the Agreement shall remain in full force and effect, and applied in a manner which most closely fulfils the original intent of the parties hereto.