Subject to the terms of this Agreement, ENTERPRISE hereby grants you a limited, non-transferable, nonexclusive, revocable right and license for the Term to obtain access to the Services for Customer’s and Customer’s Locations’ internal business purposes. All rights not expressly granted to the Customer are reserved by ENTERPRISE and its third-party licensors or suppliers (collectively, the “Licensors”).
Enterprise Paid Ads Service. The terms of this paragraph apply only if Customer has purchased the Enterprise Paid Ads Service. The Enterprise Paid Ads Service is a managed service. ENTERPRISE will create Ads based on the Customer Content, and will distribute the Ads through the ENTERPRISE-defined search providers, including but not limited to Google Ads and Bing Ads. Enterprise determines the Go-Live Date of the Enterprise Paid Ads Service. The Monthly Enterprise Paid Ads Advertising Budget will be used as a result of clicks, calls or other placement or advertising services in connection with distribution of Ads. The Budget is comprised of spend on online search networks and our fees. In any monthly billing cycle, ENTERPRISE may use more than 100% of the Monthly Enterprise Ads Advertising Budget. Any balance of the Monthly Enterprise Ads Advertising Budget at the end of a monthly billing cycle, positive or negative, will be rolled over to the next monthly billing cycle, and any negative balance of the Monthly Enterprise Ads Advertising Budget at the end of the last month of the com Ads Service is due at that time. The portion of the Monthly Enterprise Ads Advertising Budget allocated to the Google Network is expected to be approximately 90% and the portion allocated to the ENTERPRISE Network is expected to be approximately 10%, though the allocations may vary.
Centermark Service. The terms of this paragraph apply only if Customer has purchased the Centermark Service. For Locations, the Centermark Service includes the application of on page best practices and off page search engine optimization tactics and the availability of Foundations Service, which includes features designed to achieve a higher ranking for each adverSite in search engine results and optimization for the Location’s business listing in Google™ maps/places. Centermark Service may also include features that enable Customer to: (1) create and syndicate offers, (2) distribute certain Content to select social media sites and (3) upload photos to Customer’s adverSite and select social media sites. Customer acknowledges that search results and search engine rankings are influenced by several factors, and ENTERPRISE does not guarantee any particular placement, position or rank for each Location’s adverSite or business listing in any search results. For Customer, the Centermark Service enables the Customer access to an enterprise level business intelligence tool which provides reporting on location level marketing program adoption along with location and enterprise level product performance.
Centermark Lite Service. The terms of this paragraph apply only if Customer has purchased the Centermark Lite Service. The Centermark Lite Service enables the Customer to access to an enterprise level business intelligence tool which provides reporting on location level marketing program adoption along with location and enterprise level product performance.
Review Management and Solicitation Service. The terms of this paragraph apply only if Customer has subscribed for the Review Management and Solicitation Service. The Review Management and Solicitation Service enables the Customer to solicit and distribute customer reviews online.
Enterprise Web Service. The terms of this paragraph apply only if the Services include adverSites. ENTERPRISE will implement one local website (the “adverSite”) for each Location. ENTERPRISE will build, host and maintain each adverSite and will register and administer the adverSite URL. All Locations will use the same adverSite template. Unless Customer purchases the Custom AdverSite Template Service, Customer will select the template from ENTERPRISE’s library of adverSite templates. If Customer has purchased the Centermark Service, a fee for the Enterprise Web Service is included in the monthly recurring fee for such Service. If Customer terminates the applicable Service that includes the Enterprise Web Service fee and continues to maintain any other Service, Customer acknowledges that it will be charged, and hereby agrees to pay, the monthly recurring fee for the Enterprise Web Service at the then prevailing rate.
Custom AdverSite Template. The terms of this paragraph apply only if Customer has purchased the custom adverSite template. ENTERPRISE will create a custom template to be used as the basis for all local adverSites. ENTERPRISE will provide two rounds of design and client review of the custom template.
Facebook Advertising Service. The terms of this paragraph apply only if Customer has purchased the Facebook Advertising Service. ENTERPRISE will prospect and/or retarget new potential customers, past website visitors and existing prospects/customers on behalf of Customer throughout the Facebook channel via mobile app, web, and newsfeed inventory. The Facebook Advertising Service is a managed service. ENTERPRISE and Customer will agree upon campaign goals to help guide the development of banners and campaigns, and to guide the expenditure of advertising funds for optimization purposes. Targets for optimization may include leads, calls, reach or awareness and metrics will be shared and reported upon with Customer. Banners and campaigns will be utilized on a local level and will become available for the locations to purchase into if not already covered by corporate expenditure. Campaigns are run on a monthly basis and once a monthly campaign is started that monthly fee will be charged and fulfilled over the month. Any changes or cancellations to monthly budgets will take affect at the start of the next monthly billing cycle. In any monthly billing cycle, ENTERPRISE may use more than 100% of the monthly advertising budget. Advertising budget at the end of each month, positive or negative, will be rolled over to the next monthly billing cycle, and any negative balance of the monthly advertising budget at the end of the last month of the Facebook Advertising Service is due at that time.
Lead Tracking. As part of the Service, ENTERPRISE will provide the temporary use of telephone number(s) that are used to track telephone leads generated by the Services. ENTERPRISE may block calls that it reasonably believes are not legitimate leads (i.e. solicitation calls). Additionally, ENTERPRISE will provide lead tracking from online offers, online forms, Enterprise Paid Ad Services, Social Media campaigns and Display campaigns.
Mobile Application. ENTERPRISE may make available software that allows access to certain Services through a mobile device (a “Mobile Application”). To use a Mobile Application, you must have a mobile device that is compatible with the Mobile Application. You acknowledge that ENTERPRISE may from time to time issue upgraded versions of any Mobile Application and may automatically electronically upgrade the version of any Mobile Application. Standard carrier data charges may apply to your use of a Mobile Application.
SEO Services. The terms of this paragraph apply only if Customer has purchased SEO Services. Includes: a solution intended to maximize the number of visitors to a particular website so that the site gets favorable results returned by a search engine. For the avoidance of doubt, Customer acknowledges that search engine rankings are influenced by several factors, and ENTERPRISE does not in any way guarantee any particular placement, position or rank for each Location’s adverSite or business listing in any search results. Local Business Listings. The terms of this paragraph apply only if Customer has purchased
Local Business Listings Services. ENTERPRISE will syndicate a Location’s name, address, and telephone information to directory listing(s) via market leading data aggregators. Customer acknowledges that ENTERPRISE does not control or represent, including but not limited to, each individual citation, directory, aggregator, or publisher used to syndicate a Location’s information. You acknowledge that ENTERPRISE does not warrant or guarantee, either express or implied, that a Location’s information found within an aggregator’s citations are correct or will be kept current.
Website Design & Development. The Services to be provided to Client are in support of Client’s website (the “Website”) and/or other business interests and are described or addressed further in the Service Agreement and/or Project Scope & Requirements, whereby any relevant Service Descriptions contained or otherwise referenced therein are incorporated herein by reference.
Customer hereby grants ENTERPRISE and its designees a non-exclusive, irrevocable (during the Term), worldwide, transferable, sublicensable right and license, in connection with providing the Services, to (a) use, reproduce, mirror, distribute, modify, perform and display the Ads and Customer Content (or any portions thereof), (b) use Customer’s name and logo, (c) distribute the Ads and Customer Content to the ENTERPRISE Distribution Network, (d) list, represent, register or establish accounts or keywords and (e) manage directory (including Google + Local) listings of the Locations.
3. Ownership; Migration
Customer owns the Customer Content. As between ENTERPRISE and Customer, ENTERPRISE owns any content (other than Customer Content), templates, data or technology, including all related intellectual property rights, in and to the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Services. We reserve the sole right and ownership to the adverSite (other than your Customer Content), the URL at which the adverSite may be found, and the telephone numbers listed on the adverSite. Customer is responsible for maintaining the confidentiality of the passwords to its ENTERPRISE account, and Customer may not grant access to its ENTERPRISE account or share any data generated from the Services with any third party without ENTERPRISE’s prior written consent.
If Customer elects not to renew this Agreement but nonetheless desires its Locations to continue to use their respective adverSite, tracking numbers and/or keywords after termination of this Agreement and has paid all amounts due to ENTERPRISE, then ENTERPRISE will, within ten (10) business days after Customer’s request (which request must be made within 30 days of termination of this Agreement), (a) transfer the contents of the adverSites to Customer and authorize the transfer of the adverSite URLs to Customer and hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable license to continue to use the ENTERPRISE Content on its websites, (b) provide a list of all tracking numbers for Customer to initiate a transfer request with ENTERPRISE’s tracking number vendor Notwithstanding the foregoing, (a) Customer may not use any ENTERPRISE Content other than on its website, (b) ENTERPRISE may remove third party content from the ENTERPRISE Content prior to transfer and (c) Customer will remove any third party content provided by ENTERPRISE as part of the ENTERPRISE Content promptly after ENTERPRISE’s request. The process for tracking number transfer as of the Effective Date is as follows: (i) Customer creates an account with Marchex, which would require signing an agreement with Marchex and paying any required fees; (ii) Marchex will seek ENTERPRISE’s authorization to the transfer; and (iii) once ENTERPRISE authorizes the transfer, the tracking lines will be moved into the Customer’s Marchex account.
Customer will pay ENTERPRISE all amounts due under this Agreement monthly, in advance. If Customer is paying by credit card or eCheck, (a) Customer hereby irrevocably authorizes ENTERPRISE to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be Effective as of February 2019 automatically charged, in advance, and (c) if Customer’s credit card expires, Customer hereby gives ENTERPRISE permission to submit the credit card charge with a later expiration date. If ENTERPRISE suspends any Service or terminates this Agreement due to non-payment by Customer, Customer agrees that it owes all amounts that would be due for the Commitment Period as if ENTERPRISE had not suspended the Service or this Agreement had remained in effect. The amount set forth in the Agreement as the “Initial Charge” is due on the Effective Date. Except as otherwise set forth herein, prepaid amounts are non-refundable. If ENTERPRISE does not receive timely payment of any amount due under this Agreement, Customer agrees to pay all amounts due pursuant to this Agreement upon demand and will reimburse ENTERPRISE for all charges and fees ENTERPRISE incurs in collecting payment. ENTERPRISE may change the fees and charges in effect or add new fees and charges from time to time, but ENTERPRISE will give you advance notice of these changes by email and the opportunity to cancel your subscription.
5. Termination of Agreement; Cancellation and Suspension of Services
This Agreement shall become effective on the Effective Date and shall remain in effect until terminated as set forth herein (the “Term”). Unless otherwise provided in the Service Agreement, the term of the Commitment Period will automatically renew for the length of the initial Commitment Period described in the Corporate Service Agreement, Location Service Agreement or Statement of Work unless the Customer provides ENTERPRISE with written notice of termination at least sixty (60) days prior to end of the Commitment Period. Notwithstanding the foregoing, Customer may not terminate this Agreement until the Commitment Period has ended. Termination by Customer of this Agreement or by a Location of Call Recording of Inbound Calls must be e-mailed to Customer’s Relationship Development Director. If the Go-Live Date has not occurred within 60 days of the Effective Date as a result of Customer delay, then ENTERPRISE may terminate the Agreement without refund. If Customer breaches any provision of this Agreement, ENTERPRISE may suspend Customer’s Services. If such breach is capable of being cured, Customer will have 10 days to cure such breach; provided that ENTERPRISE is not required to provide an opportunity to cure if Customer subsequently commits the same breach. If such breach cannot be cured or is not cured within any applicable cure period, ENTERPRISE may terminate this Agreement and/or pursue all other available remedies, including recovery from Customer of ENTERPRISE’s costs and attorney’s fees incurred in pursuing such remedies. Notwithstanding the foregoing, ENTERPRISE may terminate this Agreement or cancel any of the Services in its discretion at any time, with a refund only of any prepaid but unused fees. The provisions of Paragraphs 2-8, and this sentence shall survive the termination of this Agreement.
6. Limitation of Liability
ENTERPRISE’s aggregate liability shall not exceed the total amount paid by you for the Services, but in no event shall it be greater than the amounts paid by Customer to ENTERPRISE hereunder within the three months giving rise to the claim, and you acknowledge and agree that this will be your exclusive remedy under this Agreement and otherwise in relation to your use of the Services.
Customer agrees not to disclose the terms of this Agreement, except (i) to such employees who need to know such information to perform their duties for Customer or (ii) to the extent that disclosure may be required by law.
9. Defined Terms
(1) “Ads” means advertisements created by ENTERPRISE with information about a Location’s business. (2) “Commitment Period” means the portion of the Term during which Customer may not terminate this Agreement. (3) “Content” means (a) any content or information provided by Customer or submitted, posted, transmitted or made available by Customer through Customer’s use of the Services, including but not limited to Customer’s brand features, text, photos or other images, patient and client data, the content of Customer’s website that ENTERPRISE uses to create an adverSite and any third party logos (e.g., society memberships) (collectively, the “Customer Content”) and (b) content that ENTERPRISE provides or posts on Customer’s behalf. (4) “Go-Live Date” means the date that the first Location’s adverSite is live or, for a different service, the first day ENTERPRISE provides the applicable Service. (5) “Term” has the meaning set forth in Paragraph 5.