IO Five Years or Less Terms & Conditions
- Payment Schedule (Monthly): Within 2 days after the end of each billable month during the term of this Contract, MGT will provide Client with an invoice detailing the UGACT charges for the previous month along with the list of keywords and cities. All payments from Client will be due within fifteen (15) days after receipt of an invoice, unless disputed by Client based on a discrepancy (section 3). All disputes will be paid within fifteen (15) days of receiving revised invoice.
- Payment for Advertising: Client will pay the charges set forth in the Contract (plus applicable taxes) within fifteen (15) days of receipt of invoice. MGT typically bills on a monthly basis, however, MGT may, upon thirty (30) days prior written notice, require payment on other than a monthly basis for credit or other reasons. Upon Client’s failure to pay any invoiced amount when due, MGT may accelerate the billing and collection of all remaining charges for all Advertising, without further notice to Client, including when charges are separately billed. MGT may also remove the Client’s advertising from any or all websites. MGT may require Client to provide information regarding its credit worthiness. The advertising charges set forth and agreed to in the Contract are fully due and payable, not-withstanding any disconnection of phone service to any phone number appearing in any advertisement/listing; any discontinuance or change of location of the Client’s services or Client’s advertised business; or, any change of, or transfer of ownership of any advertised business. Client will be liable for all returned check fees and any other fees allowed by law and in some cases, may be charged an additional $35 service charge. MGT has the right, but is under no obligation, to disclose any or all information it has concerning client payment history to third parties, including credit-reporting agencies, solely for the purpose of collection of any payment hereunder. Collection Activity Fee: If Client Fails to make payments as specified herein, Client agrees to pay MGT’s reasonable attorney fees and other legal expenses associated with collection of Client’s account, and to pay MGT’s reasonable collection costs associated with collection of the amounts due. Client agrees that MGT’s collection costs include both internal and external costs of MGT and that it would be impractical and cost-prohibitive for MGT to calculate the actual costs associated with collection activities for each Client’s account. If Client receives incentive pricing for any Advertising item(s) based on a commitment by Client regarding any other Advertising item(s), and Client subsequently cancels or fails to fulfill Client’s commitment regarding said other Advertising item(s), then said incentive pricing will revert to, and Client will be obligated to pay, the full undiscounted charge for the Advertising item(s) for which incentive pricing was received. Payments shall be made to:
Merging Global Technologies, Inc.
WELLS FARGO BANK, N.A.
Bank Address: 4740 Lebanon Road, Hermitage, TN 37076
Routing number: 064003768
Bank Account Number: 9958204597
A signed W-9 form will be provided to Client before any payments will be made by Client. Invoices will be submitted electronically to TBD. Submission of invoices in any other manner could result in payment delays, and it is agreed and acknowledged that no interest shall be due on amounts so delayed, nor shall any other penalties, including termination or suspension of service, be imposed as a result of such delays.
- Exclusivity: Excluding the home page(s) and its digital display ad placement, throughout the contract term, Client will be the exclusive integrated Client for the specified industry vertical page(s) inside of the MGT-Local site network. Client will have administrative access to the industry vertical page(s) and their contents.
- Site and Products: The HTTP/URL address to be connected with this National Priority Placement Insertion Order shall be: TBD.
9. Negative Keywords: Client will provide to MGT a list of negative keywords that MGT shall not bid on while performing the services for Client contemplated under this Contract. Client may, in its sole discretion, provide MGT, in writing (email acceptable), with updates to this list from time to time during the term of this Contract, provided that MGT has not already added such keywords. If MGT does not acknowledge via email receipt of a list of negative keywords provided to MGT by Client, such list shall not be deemed delivered.
- Integration Assistance: Client agrees to work in good faith with MGT to insert and integrate the digital advertising material placed on the Industry Vertical Landing page. MGT will work with Client in good faith during the contract term to maintain the best possible exposure and conversion for Client’s ROI. MGT may elect, upon Client’s prior written consent, to provide additional placements for Client in prominent locations across the MGT-Local Network. In addition, the parties will discuss additional co-marketing opportunities throughout the term of the Contract that would mutually benefit both Parties.
- Client Artwork and URL: In the event that all necessary artwork and active URL’s are not provided to MGT at least three (3) business days prior to the agreed display start date, all unique visitors delivered to the relevant advertising inventory from and after the display start date shall count toward the total unique visitors and Client shall remain liable for all payments hereunder notwithstanding MGT’s inability to display the Advertisement.
- Reporting: MGT will track unique visitors as well as “unique page-views” in accordance with its standard methodologies (Google Analytics). Notwithstanding any other provision on reporting in this Contract, MGT shall deliver to Client a report on an “on-demand” basis showing the number of UGACTs (by Placement) delivered based on MGT’s standard methodologies as well as the actual Google Adwords reports showing Clicks, Impressions, CTR’s & Average position and Full Google Analytics “Read Access”. Client may also install/embed an internal tracking and reporting system of their own choosing.
- No Assignment or Resale of Ad Space: Unless previously authorized by MGT, Client may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights shall result in immediate termination of this Contract, without liability to MGT, and Client will be monetarily responsible for entire amount of the remaining term of contract, billed at a monthly average of Unique Google Adwords Click Thrus already delivered.
- Right to Redesign: MGT will be solely responsible for the design, organization, structure, specifications, look and feel, navigation and maintenance of the MGT-Local Network of sites. MGT reserves the right, at any time, to redesign or modify the organization, structure, specifications, “look and feel,” navigation, guidelines and other elements of the MGT-Local Network upon notice to client.
- Modifications: (a) This Contract is the entire agreement between MGT and Client concerning the advertising specified on the face of this Contract, and supersedes any and all prior agreements between the parties. This Contract cannot be modified except in a writing signed by both parties. Only a Corporate Executive, Corporate Officer, Regional Vice-President, or its successors title, may sign any such writing on behalf of MGT; (b) No oral or written representation made by MGT’s local sales representatives (Business Advisor’s), which purports to modify this contract is binding on MGT. Moreover, Client confirms that Client, in entering into this Contract, has relied upon no such representation; (c) If any provision of this Contract is held to be invalid under the law, the remaining provisions shall be enforceable; (d) This Contract may be executed in counterparts and by facsimile copies. All executed copies are duplicate originals, equally admissible into evidence.
Limitation of Liability: For purposes of this Section 16, the term “MGT” includes MGT’s affiliates, partners, and the directors, officers, agents, and employees thereof. MGT’s acceptance of this Contract and the rates charged for the advertising and other services are based upon MGT’s limitation of liability as set out in this Section 16, and upon Client’s agreement to all other terms and conditions of this Contract. Client agrees that errors and omissions will sometimes occur in processing a request for advertising or in the publication or delivery of advertising, and that MGT cannot and does not guarantee that advertising will be published without error or omission or delivered as scheduled by MGT, due to the possibility of such errors or omissions occurring. MGT has no obligation to give Client or any third party notice of such errors or omissions, or to correct them by reposting directories, banners, or by performing supplemental services. MGT is not liable to Client for an error or omission if it was caused by Client or a third party; resulted from information supplied by Client or a third party; or was caused by an act of God, labor stoppage, governmental authority or other act beyond MGT’s reasonable control. MGT’s maximum liability to Client for any error, omission or other default is limited as stated herein, regardless of whether Client alleges claims against MGT in contract or in tort, or other basis in law or equity. In the event of an error, omission or other default in the publication on an item of advertising, MGT shall be liable to Client for the amount (as determined by MGT) by which the value of the item of advertising was decreased, in no instance to exceed the total amount Client actually paid for the item of advertising. MGT will not be liable for any error, omission or other default in delivery or as to items for which no charge is assessed. MGT will not be liable for lost profits or any other consequential damages, including exemplary, incidental, indirect or punitive damages.
- Warranties and Obligations: Client warrants that: It will provide MGT with all information necessary to publish the advertising and will do so in a timely manner; All information in advertising and any of Clients websites is accurate, not misleading and complies with all laws and licensing requirements; No item of advertising requested by Client or found on Client’s websites violates the right of any third party; Client is authorized to be and is engaged in the business of advertising and/or providing the products and/or services corresponding with the categories under which Client wishes to advertise. As to Advertising created by MGT for Client, Client is responsible to review said advertising and to confirm that it has the right to use and publish any name, address, trade name, trade mark, service mark, picture, likeness, logo, reproduction, endorsement, copyrighted or copyrightable item or other content as included in such advertising; Client warrants that Client will honor any promise, offer, or other statement set forth in the Advertising during the entire life of the Advertising, or until an expiration date stated in the Advertising, whichever occurs first.
- Indemnification: Each party will indemnify, defend, and hold harmless the other, its Corporate Affiliates, and their respective officers, directors, employees, and agents from and against any and all losses, obligations, costs, liabilities, damages, actions, suits, causes of action, claims, demands, settlements, judgments, or any other expenses, including but not limited to reasonable attorneys’ fees and expenses, which are asserted against, imposed upon or incurred or suffered by such indemnified parties, or any of them, and which arise out of or result from: a) any breach or failure to observe any term, covenant, condition, warranty, representation, or limitation contained in this Agreement by the indemnifying party, its Corporate Affiliates, or any of their respective officers, directors, employees, or agents; or, (b) the violation, infringement, or misappropriation of the copyright, trademark, patent, trade secret, or other intellectual property rights of any third party by the indemnifying party, its Corporate Affiliates, or any of their respective officers, directors, employees, or agents. All rights and remedies of the parties hereunder will be cumulative and in addition to all rights and remedies available to such parties at law or in equity.
The indemnified party shall: (i) promptly notify the indemnifying party in writing of any losses for which the indemnified party seeks indemnification; (ii) provide reasonable cooperation to the indemnifying party and its legal representatives in the investigation of any matter which is the subject of indemnification; and (iii) permit the indemnifying party to have full control over the defense and settlement of any matter subject to indemnification; provided, however, that the indemnifying party shall not enter into any settlement that affects the indemnified party’s rights or interests without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party shall have the right to participate in the defense at its expense.
- Termination: Either party may terminate this Contract at any time with written notice to the other party in the event of a material breach of this Contract by the other party, which remains uncured after fifteen (15) days written notice thereof; provided that the cure period in connection with Client’s failure to make any payment to MGT required by this Contract shall be ten (10) days rather than thirty days. MGT may terminate this Contract immediately following written notice to Client if Client (1) ceases to do business in the normal course, (2) becomes or is declared insolvent or bankrupt, (3) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or (4) makes an assignment for the benefit of creditors.
- Notices: Notices to Client and MGT hereunder shall be given by: (a) confirmed e-mail; (b) confirmed facsimile; (c) U.S. mail certified, return receipt requested; or (d) overnight or same day courier, correctly addressed to the respective entities specified below:
To: Merging Global Technologies, Inc:
E-MAIL: firstname.lastname@example.org, email@example.com
U.S. Mail or Overnight Courier:
Merging Global Technologies, Inc. With a copy to: Butler / Snow
Attention: Client Services Attn: Robert Holland, Jr.
424 Church Street, 20th Floor 150 3rd Ave S #1600
Hermitage, TN 37219 Nashville, TN 37201
U.S. Mail or Overnight Courier:
One Planet Ops, Inc.
12667 Alcosta Blvd., Ste 200
San Ramon, CA 94583
- General Provisions: This agreement is made subject to all Federal, State and Municipal laws and regulations now or hereafter in force and is not assignable in whole or in part, except as otherwise herein specifically provided, without the written consent of MGT and shall be governed by the laws of the State of Delaware, excluding all principles of referral to the laws of other jurisdictions which might otherwise be applicable under doctrines of conflicts of law. Waiver of rights resulting from breach of any provision hereof shall not be deemed to constitute a waiver of rights resulting from any previous or succeeding breach of the same or any other provision. Except as herein otherwise specifically provided, this agreement constitutes the entire Contract between the parties relating to the subject matter hereof and may not be changed, modified, renewed, extended or discharged except by an agreement in writing, signed by the party against whom enforcement of the change, modification, renewal, extension or discharge is sought. Each party will comply with all applicable laws and regulations in performing its obligations under this Contract.
- Miscellaneous: MGT has the sole right and discretion to operate its business in any manner it chooses, including but not limited to the right to determine and/or change the name, look, content, categories, sequence of categories, design, publishing policies, specifications, standards and guidelines, posting, publication and distribution. MGT has the right to reject Advertising that does not comply with its publishing policies, specifications, standards and/or guidelines. Instead of rejecting Advertising in its entirety MGT may, but is not required to, change a portion of the Advertising with Client’s prior written consent, to resolve a policy, specifications, standards, or guidelines conflict. MGT does not warrant to Client that Advertising of other Clients will comply with such publishing policies, specifications, standards, and guidelines. MGT is not obligated to publish any advertising. MGT does not guarantee that the advertising will be in any specific sequence or position on a website except as explicitly stated on the face of the Contract. MGT has the right to place Advertising in any position on a website (including within categories or pages therein) and to introduce new Advertising products that may result in a change in the position of Advertising on a website. Client will not represent to any third party that MGT approves or endorses any product or service of Client. MGT may publish Advertising of any other party in any website at any time. MGT may create, revise, or cancel an MGT discount or promotional offering at any time prior to the effective date of this Contract. No discount offered to Clients obligates MGT to offer any future discount not specifically included in the initial offer. Client agrees to accept phone calls, faxes, e-mails, and other communications from MGT or MGT’s agents related to MGT’s services. Client will provide contact telephone numbers, fax numbers, and e-mail addresses, if any, to MGT upon request. MGT will guarantee exclusivity in a business category for any Advertising on a case by case basis. By entering into this agreement, the parties are not in any manner precluded from entering into any separate advertising agreements not related to this Insertion Order. MGT shall not alter any Advertising provided or approved by Client and shall present them only as contemplated under this Contract. No Client Advertising shall be placed on any website that contains or links to a website or other destination that contains content that is sexual, offensive, deceptive or illegal in nature or that in any way promotes or encourages hatred, violence, discrimination or illegal activities. In addition, the Client Advertising shall not be placed on any website that targets children under the age of thirteen.
- Confidentiality: MGT and Client each agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, during the term of this Insertion Order, and for a period of three years following expiration or termination of this Insertion Order, to prevent the duplication or disclosure of Confidential Information of the other party other than by or to its employees or agents who must have access to such Confidential Information to perform such party’s obligations hereunder, which employees or agents are subject to strict confidentiality obligations. Notwithstanding the foregoing, either party may disclose Confidential Information without the consent of the other party, to the extent such disclosure is required by law, rule, regulation or government or court order. In such event, the disclosing party shall provide at least five (5) business days prior written notice, where legally permissible, of such proposed disclosure to the other party and shall submit a request to the applicable governing body that this Insertion Order (or portions thereof) receive confidential treatment to the fullest extent permitted under applicable laws, rules and regulations. “Confidential Information” shall mean any information relating to or disclosed in the course of this Insertion Order, which is or should be reasonably understood to be confidential or proprietary to the disclosing party, including, but not limited to, the material terms of this Insertion Order and information about MGT Users. “Confidential Information” shall not include information (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third-party. Upon the expiration or termination of this Insertion Order, each party will, upon the written request of the other party, return or destroy (at the option of the party receiving the request) all Confidential Information specified by the other party. This section shall survive the completion, expiration, termination or cancellation of this Insertion Order for the three (3) year period specified herein.
- Entire Agreement: The terms and conditions set forth in this Contract are hereby incorporated into and made a part of this Contract. This Contract constitutes the complete and exclusive agreement between the Parties with respect to their subject matter, superseding and replacing any and all prior agreements, communications and understandings (both written and oral) regarding such subject matter.
- Content and Trademark Licenses: Trademark License. Subject to the terms and conditions of this Contract, Client hereby grants MGT a royalty-free, non-exclusive, non-transferable license during the term of this Contract to use Client’s trade names, domain names, trademarks, service marks, or logos (collectively, “Marks”) in Client’s Advertising solely to perform activities and obligations contemplated under this Contract. However, Client grants MGT no rights in or to any of its trademarks, service marks or trade names, other than the rights expressly granted in the foregoing sentences. MGT expressly acknowledges Client’s sole and exclusive ownership of its trademarks and agrees not to take any action inconsistent with such ownership. MGT agrees further to take such additional actions, at Client’s expense, as Client deems reasonably necessary to establish and/or preserve Client’s exclusive rights in and to its Marks. MGT agrees not to form any combination marks with Client’s Marks, or adopt, use or attempt to register any trademarks, service marks or trade names that are confusingly similar to Client’s trademarks. All uses of Client’s Marks shall inure to the benefit of, and be on behalf of, Client. Upon termination of this Contract, MGT shall immediately cease to use any Client Advertising, information, names, or Client Marks, and shall remove any Client Marks from items and locations under its control.
Reservation of Rights. Each party shall continue to own all rights, title and interest in and to its patents, know-how, trade secrets, software, trademarks and all other intellectual property, subject only to the license rights expressly granted herein.
- Records: During the term of this Contract, MGT will maintain accurate and complete records of all information necessary to determine MGT’s compliance with this Contract. Client shall have the right, upon ten (10) business days prior written notice and not more than twice during any calendar year, to review and copy such records during normal business hours, to determine MGT’s compliance with its obligations under this Contract. Client shall not be entitled to any documentation that sets forth MGT’s costs. Such information and records shall be deemed MGT’s Confidential Information and shall be subject to the restrictions set forth in Section 23 above.
- Public Statements: Neither party will make any announcements or statements to the public concerning the relationship between them or the transactions described herein without the prior written consent of the other party. Unless otherwise provided herein, neither party will use the other party’s name, trademark or logos without the prior written consent of the other party.
28. Survival: The provisions of Sections 6, 12, 17, 18, 21, 23, and 26 shall survive the expiration or earlier termination of this Contract.