TERMS AND CONDITIONS
Viri Digital
These terms and conditions (herein after) shall be applicable to all Order Forms entered into by and between Viridigital (“Provider”) and the Customer set forth on the Order Form (“Customer”). Provider and Customer are each referred to as a (“Party”) and collectively as the (“Parties”). The Order Form shall be subject to the Terms which are incorporated therein by reference. The Order Form and these Terms together shall be collectively referred to as the Agreement. In consideration of the mutual covenants set forth herein, the sufficiency of which is hereby acknowledged by each Party, Provider and Customer hereby agree as follows:

1. Services: Subject to all terms and conditions set forth herein, Provider shall provide the marketing services, campaigns, advertising and programs (collectively, the “Services”) set forth in the Order Form expressly made subject to the Terms and executed by both Parties hereto. In the event of any conflict between these Terms and the terms of the Order Form, the terms of the Order Form shall control. Descriptions of the available Services and corresponding additional terms (“Additional Terms”) are provided in the Exhibits attached hereto, which are incorporated herein by reference. The Exhibits may be updated from time-to-time as additional services are introduced along with any corresponding additional terms for such service, which shall be effective upon execution of a new order form for the respective service. Customer acknowledges and agrees that Customer shall only receive the Services set forth in the applicable Order Form and purchased by Customer. Customer agrees and acknowledges that the Services may be provided to Customer via Provider’s third party vendors and/or partners. Customer acknowledges and agrees that the Services may be dependent on timely receipt by Provider of certain information, content and materials from Customer. Provider will determine the method, details, and means of performing the Services. Customer is responsible for implementing any recommendations, 

2. Authorization: Customer hereby authorizes Provider to act on behalf of Customer in connection with provision of the Services to Customer under the Agreement. Such authority, includes, but is not limited to, ordering the Services from third parties. For the avoidance of doubt, Customer grants Provider all rights necessary for Provider to facilitate the provision of the Services to Customer hereunder. Customer shall direct communications regarding the Services only to Provider, unless instructed otherwise by Customer. Customer agrees to comply with all reasonable requests of Provider necessary for the performance of the Services.

3. Third Party Service: Customer acknowledges that Provider cannot accept any responsibility or liability for the performance, policies or actions of third party digital marketing networks including, but not limited to, search engines, display networks, social networks or directories. Customer acknowledges that third party digital marketing networks may drop listings, suspend accounts, impose additional requirements or terms and conditions, or undertake other actions, which may impact the Services, at their discretion. Customer agrees that Provider shall not be responsible or liable for any of the foregoing.

4. Placements: Customer acknowledges that Provider cannot guarantee specific delivery or positioning of any creative/advertising placements in connection with the Services.

5. Access: Provider may require access to, and Customer agrees to provide such access or otherwise make available, any systems, hardware, services, hosting, FTP software or similarly functioning software or content management systems, or other resources deemed necessary by Provider to fulfill its obligations under this Agreement.

6. Fees: Provider will charge the account management fee(s) set forth on the Order Form(s) to perform the Services selected on the Order Form. Account management fees are on a monthly basis and invoiced in arrears. Account management fees shall be prorated if the Effective Date is not on the first day of a month. In addition to account management fees, Provider may charge Customer a one-time technology fee to initiate the Services selected on the Order Form, which fees shall be invoiced on the Effective Date. All account management fees and technology fees are nonrefundable. In addition to the account management fees and technology fees, Provider shall invoice Customer the monthly advertising budget (“Advertising Budget”) set forth on the Order Form, media spend on Google, BING and/or any additional advertising platform in arrears. Advertising Budget may be adjusted during the Term. Any modification to the Advertising Budget must be made in writing via email from Customer and acknowledged in writing via email by (“Provider’s”) designated account manager. Advertising Budget modifications must be submitted and acknowledged in accordance with the previous sentence, at least three (3) business days prior to commencement of the applicable month. Unless otherwise agreed in writing by the parties, the Advertising Budget set forth on the Order Form, as modified in writing via email as set forth above, will automatically be designated as the Advertising Budget during the Term. Within 30 days of the end of each month, Provider shall provide Customer with a report summarizing the costs and charges for the digital media, content and advertising placement purchased in connection with the Services with the Advertising Budget for such month, which costs and charges may include additional markup to account for volume commitments and contractual obligations undertaken by Customer in exchange for more favorable rates. Any unused Advertising Budget shall carry over as a credit to be used in the following month.

7. Payment Terms: All payments are net 14 days from the date of invoice. Customers on post-pay or credit accounts who exceed a 14 day balance may be moved to a secured account requiring an upfront payment equal to one (1) month’s account management fee plus the Advertising Budget. In the event Customer fails to make any payments in a timely manner, the Provider has the right, but is not obligated to, terminate the Agreement with written notice. Such remedy is in addition to any other remedies which may be available to Provider under the Agreement or under applicable law. Late payments will be charged a late fee equal to the lesser of 1.5% or the maximum interest rate allowable by law multiplied by past due amount. In addition to the late payment penalty set forth above, in the event Customer fails to make any of the payments in accordance with the Agreement, Provider may suspend the Services until payment is paid in full. In addition to any outstanding balance, Customer shall be liable for all collection agency fees and reasonable attorney’s fees payable by Provider in connection with enforcing Customer’s performance of its payment obligations set forth in this Agreement. Customer shall be responsible for all taxes due in connection with the transactions contemplated hereunder, except for taxes based on Provider’s income.

8. Reimbursements: Provider shall be entitled to reimbursement for reasonable brokerage fees, customs fees and other business expenses incurred by Provider in the performance of this Agreement and Customer shall have the right to require Provider to supply reasonable documentation supporting the incurrence of such expenses. Customer agrees to reimburse Provider for installation fees, set up fees, development fees and other fees or charges resulting from the installation of tracking and analytic codes in connection with the Services or use of the Services.

   1. Security / Credit: Post-pay accounts and credit accounts are provided at Provider’s discretion. Customer may be required to submit a credit application to obtain a post-pay or credit account. Such accounts require an upfront payment equal to one (1) month’s account management fee plus the Advertising Budget.

9. Term of Agreement: The Agreement shall remain in effect during the term set forth in the Order Form (“Terms”). Unless terminated as provided for in Section 12, the Agreement will automatically renew for an additional term of equal length to the Term.

10. Termination: Either party may terminate this Agreement by providing the other party with written notice at least thirty (30) days prior to the end of the Term. The Agreement may be terminated by a Party if the other Party materially breaches the Agreement and does not cure such breach within thirty (30) days following written notice thereof from the non-breaching Party. In the event of a breach of the Agreement by Customer, Services may be suspended by Provider until the breach of the Agreement is cured. The Agreement or a particular Service may be terminated by Provider upon: (i) termination or expiration of the relationship between Provider and the vendor/partner that enables the Services; or (ii) thirty (30) days advance written notice. Upon termination of this Agreement, Provider may remove any tracking codes and the like installed by Provider in connection with the Services. The provisions of the Agreement, which expressly or by implication are intended to survive termination or expiration, will survive and continue to bind the Parties.

11. Usage and Ownership.

    1. The rights and licenses granted hereunder to Customer are non-transferrable. Customer will not, and will not permit any third party to, use or disclose the Services, unless expressly permitted under this Agreement. Without limitation of the foregoing, Customer will not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services. Provider, its partners and/or vendors exclusively retain all right, title and interest in and to the Services, in all forms, and all copies, modifications, edits, improvements, additions, and derivative works prepared from or relating to the same, including all worldwide rights to patents, copyrights, trademarks, trade secrets or other intellectual property rights in or relating to the same. The Services shall not constitute (“work for hire”). Customer is not acquiring any right, title or interest of any nature whatsoever in any Services except the right to use the Services as contemplated in this Agreement. Provider will have the exclusive rights in making any derivative works from the Services or its related work.

    2. Customer owns, or is authorized to use, any keywords, combination of keywords, Customer advertising materials, artwork, links, domain names (URLs), websites, data and content provided by Customer to Provider, including Customer’s trademarks, service marks, names and logos and the content of any creative material created by Provider that Customer approves (collectively, “Content”). Customer hereby grants to Provider and its Affiliates a perpetual, non-exclusive, royalty-free, irrevocable right and license (i) to use, copy, perform, display, distribute and modify the Content in any manner or medium, now known or hereafter developed, for Provider to perform the Services, and (ii) to prepare statistical analyses which Provider and its Affiliates may use to improve their services and may combine with other similar data from other customers and disseminate and otherwise use in aggregate form.

12. Use of Material for Services and Promotional Purposes: Customer grants Provider the right to (i) use any Content provided by Customer in connection with the Services and/or (ii) cross-link (i.e. by placing a tag on Customer’s website) any such Content with other advertising developed by Provider. Customer grants Provider the right to list, reference or otherwise identify Customer as a client of Provider in Provider’s advertising and marketing. In connection with the provision of certain Services, Customer agrees and acknowledges that Provider identification may be annotated, and remain within the code or on Customer’s web site, identifying Provider as the author and/or service provider. Customer also agrees to put Provider’s copyright notices on any reports generated in connection with the Services and the relevant content therein.

13. Confidentiality: (“Confidential Information”) means any confidential and/or proprietary information provided by Provider to Customer under this Agreement, including without limitation, any information relating to Provider’s products, Services, costs, prices, vendors, partners, finances, marketing plans, business opportunities, personnel, research, development or know-how; that is (i) clearly designated by Provider as confidential in writing on the materials at the time of disclosure, (ii) if disclosed orally, designated as confidential at the time of disclosure and reduced to writing and designated as confidential in writing within thirty (30) days after oral disclosure, or (iii) given the nature of the information and the circumstances of disclosure, a reasonable person would deem to be confidential. Confidential Information includes, but is not limited to, the Services and all associated intellectual property and know-how. Customer will not use any portion of the Confidential Information provided by Provider hereunder for any purpose other than the purposes contemplated by the Agreement. Customer shall protect all Confidential Information received from Provider with the same degree of care with which it protects its own Confidential Information, which in no event shall be less than reasonable care. Customer shall promptly notify Provider of any actual or suspected misuse or unauthorized disclosure of the Provider’s Confidential Information. Customer shall not disclose Provider’s Confidential Information to any person except as authorized in writing by Provider. Upon termination of this Agreement and/or upon request by Provider, Customer shall promptly return to Provider all of Provider’s Confidential Information in its possession (including all copies and extracts thereof). In connection with a breach of the confidentiality provisions herein, Provider shall be entitled to seek injunctive relief, in any court having proper jurisdiction, in addition to any other remedy that the Provider may have.

14. Customer Representations and Warranties: Customer represents and warrants that: (a) the Content will not infringe upon or violate any intellectual property or other rights of any third party, and that Customer has all necessary licenses and clearances to use, and to allow Provider to use, the Content; (b) Customer has all rights, title, interest, consents, authorizations, permits, licenses, registrations, notices and rights to perform its obligation under this Agreement, including, but not limited to, provision of the Content hereunder in connection with the Services and provision of the Services to its customers and website users; (c) Customer shall comply with all applicable laws, rules, regulations (including, but not limited to, laws regarding the collection, use, and disclosure of information from visitors to Customer’s websites) and industry best practices in connection with its use of the Services; (d) Customer’s website’s privacy policy and terms of use shall comply with all applicable laws, rules and regulations and industry best practices regarding the Services; (e) Customer shall comply with all applicable privacy policies (including Customer’s privacy policy), privacy settings, and any other policies, terms of use, terms of service and guidelines (including, but not limited to, those of search engines, display networks, social networks or directories such as Facebook and Twitter, as applicable) in connection with use of the Services under this Agreement; and (f) Customer has the full power and authority to enter into this Agreement, and the execution and performance by Customer of this Agreement does not and will not breach or cause a default under any other agreement, contract or joint venture agreement to which it is a party.

15. Limited Warranty: If the Services are not provided by Provider in accordance with the description of Services herein, Provider shall re-perform the Services without unreasonable delay, at Provider’s sole expense and without charge to Customer, to bring the Services into conformance with the description of Services herein. This warranty shall be the exclusive warranty available to Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Provider does not warrant that the Services will work on all platforms or in every circumstance. Customer acknowledges and agrees that Provider will not be responsible for the results, productivity or any other measurable metric of the Services. EXCEPT AS EXPRESSLY PROVIDED HEREIN IN THIS SECTION, PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), 

16. Indemnification: Customer will defend, indemnify and hold harmless Provider, its vendors, partners, parents, subsidiaries, affiliates and their officers, directors, employees and agents and their successors and assigns (collectively, (“Indemnitees”) against any and all claims, demands, losses, costs or liability (including without limitation reimbursement for reasonable attorneys’ fees and disbursements) which Indemnitees, may incur as a result of, arising from or relating to: (a) any breach of the Agreement by Customer or any of its officers, directors, employees and agents; (b) use of the Services and/or Content; (c) infringement by the Content of a patent, copyright, trademark right or other intellectual property right of a third party or misappropriation of any third party trade secret; (d) any violation of any law by Customer in connection with the transactions contemplated by the Agreement; (e) Customer’s products/services, including, but not limited to, defective products sold via the Services; (f) problems/disruptions with the Services caused by third-party services that Customer may use, such as merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing and other services that relate to or impact Customer’s use of the Services; (g) use of digital tracking measures in connection with any applicable Services, including but not limited to, conversion tracking, call tracking, reverse proxies and analytic applications, (h) the web pages linked to from Customer website or advertisements and the content therein; (i) the products or services promoted or offered in, or the web pages linked to, from Customer website or advertisements; and (j) the collection and use by Customer of personally identifiable information collected from users of Customer website or advertisements.

17. Limitations of Liability. IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, LOST OR DESTROYED DATA, LOST REVENUES, LOST OPPORTUNITY COSTS, DIMINISHED BRAND OR ANY OTHER ECONOMIC LOSS, OF ANY TYPE OR NATURE, OR FOR EVENTS OR CIRCUMSTANCES BEYOND PROVIDER’S CONTROL, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER OCCASIONAL SHORT TERM INTERRUPTIONS OF SERVICE NOR INTERRUPTIONS OF SERVICE RESULTING FROM EVENTS OR CIRCUMSTANCES BEYOND PROVIDER’S REASONABLE CONTROL SHALL BE CAUSE FOR ANY LIABILITY OR CLAIM AGAINST PROVIDER HEREUNDER, NOR SHALL ANY SUCH OCCASION RENDER PROVIDER IN DEFAULT UNDER THIS AGREEMENT. PROVIDER’S CUMULATIVE, AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING IN ANY WAY OR IN ANY DEGREE FROM THIS AGREEMENT, OR OTHERWISE FROM THE ACTS OR OMISSIONS OF PROVIDER UNDER ANY AND ALL LEGAL THEORIES WILL NOT EXCEED THE LESSER OF (I) $50,000 OR (II) THE TOTAL AMOUNT PAID BY CUSTOMER TO PROVIDER IN THE 12 MONTHS BEFORE SUCH CLAIM AROSE. CUSTOMER HEREBY ACKNOWLEDGES THAT THE REMEDIES SET FORTH ABOVE ARE REASONABLE AND WILL NOT FAIL OF THEIR ESSENTIAL PURPOSE.

18. Force Majeure. No failure, delay, or default in performance of any obligation under this Agreement (other than payment obligations) will constitute a breach of this Agreement if it is caused by strike, fire, shortage of materials, act of a public authority, civil disorder, riot, work stoppage, labor strife, cessation of third party supplies or services, vandalism, war, severe weather, natural disaster or other act of God; terrorism; or other cause that is beyond the reasonable control of the Party otherwise chargeable, for so long as such cause continues and for a reasonable period of time thereafter.