PERFORMANCE PROGRAM WEBSITE, MARKETING AND CONVERSION COACH AGREEMENT
This Performance Program Website and Marketing Agreement (“Agreement”) is dated as of the last date written below (“Effective Date”), and is made by and between AdsNext, LLC, a Maryland limited liability company, d/b/a Dental Revenue (“Dental Revenue”) and the undersigned Client (“Client”).
WHEREAS, Dental Revenue offers a package of services consisting of website design, development and maintenance, search engine optimization and “conversion coaching”, among other things, which is designed to maximize the online marketing efforts of dental practices and generate new revenue (the “Performance Program”).
WHEREAS, Client desires to purchase Dental Revenue’s services and license the Software (defined below), pursuant to the terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS.
The term “Client Website” means the website to be developed by Dental Revenue under this Agreement.
The term “Content” means all of the content that appears on the Client Website including, without limitation, all text, pictures and video.
The term “Fees” means the setup fees, monthly service and license fees, and any other fees paid or to be paid to Dental Revenue by the Client in accordance with this Agreement.
The term “Performance Design Styles” means the website design styles created and owned by Dental Revenue.
The term “Software” means the Dental Revenue proprietary software and any third party software that is used or provided by Dental Revenue in connection with the performance of its obligations under this Agreement.
The term “Tracked Number” means a Client telephone number provided by Dental Revenue in accordance with this Agreement, the conversations on which are recorded and analyzed as a part of the Performance Package.
SECTION 2. ENGAGEMENT.
Client hereby engages Dental Revenue to provide and implement the Performance Program, as it is described in Exhibit A which is attached hereto and incorporated herein by this reference. The Performance Program will be implemented substantially in accordance with the schedule set forth in Exhibit A.
SECTION 3. SOFTWARE LICENSE
During the term of this Agreement, Dental Revenue hereby grants Client a non-exclusive worldwide license to use the Software for the purposes set forth in the description of the Performance Program in Exhibit A. Client shall not to modify, alter or change the Software.
SECTION 4. DOMAIN, HOSTING & EMAIL
The Client shall own all rights to its Internet domain name. After the Initial Term (as defined in Section 10, below), Client shall pay Dental Revenue $300.00 to cover the costs of hosting the Client Website and renewing the associated domain name and e-mail account(s) (the “Renewal Fee”). The Renewal Fee shall be due at the beginning of each successive 12-month period following the Initial Term. Dental Revenue will maintain control over and/or have full access to the domain name during the term of this Agreement. Dental Revenue will host the Client Website through a third party company such as WP Engine and/or a national reseller such as GoDaddy. Dental Revenue makes no guarantees or assurances regarding website hosting beyond those made by the third party host provider. Dental Revenue will provide, as part of the Performance Program, up to five (5) email addresses for the Client’s domain name. E-mails are provided through a third party company such as GoDaddy. The provision of e-mail service is subject to the terms and conditions required by the third party providers and Dental Revenue shall not be liable for any losses, costs or damages arising out of the e-mail services including, without limitation, such losses, costs or damages arising out of the disruption of service.
SECTION 5. HIPAA COMPLIANCE
The Performance Program is not designed to capture any “Protected Health Information”, as that term is defined in the Health Insurance Portability and Accountability Act (“HIPPA”) and its implementing regulations. The Performance Program DOES NOT capture addresses, social security numbers, or other patient sensitive data.
The Performance Program tracks and records NEW patient telephone calls and website forms ONLY, and stores them in a secure Reporting Dashboard. Although the website will include both a NEW patient telephone number and a Current Patient telephone number, the latter calls are not recorded.
In the event a Current Patient calls the NEW patient telephone number or uses the NEW patient contact form, Dental Revenue will not review those contacts. Additionally, in the rare event a Current patient does disclose sensitive patient information, the Dental Revenue staff is instructed to delete those calls.
SECTION 6. OWNERSHIP AND USAGE RIGHTS
Client will choose the basic design of the Client Website from among the Performance Design Styles. A Performance Design Style will be personalized for the Client to include Client’s logo, color scheme, photos and other content. During the initial term of this Agreement, the Client shall have the right to display the personalized Performance Design Style as its website. Upon Dental Revenue’s receipt of full payment hereunder and the completion of the initial term of twelve (12) months, the Client shall have an unlimited license to use and reproduce the personalized Performance Design Style.
Except for the foregoing license, all right, title and interest to the Performance Design Styles (including, without limitation, the original Performance Design Style(s) and all other designs and artwork (whether draft or final versions) remain with Dental Revenue or its contractors or vendors, as the case may be. Performance Design Styles and all other designs and artwork include, but are not limited to, layouts, animations and designs created by Dental Revenue or its contractors or vendors, computer disks containing such layouts, photography or illustration created by third parties commissioned by Dental Revenue, and photography or other images purchased by Dental Revenue from third parties. Client shall retain ownership of the Client Website and the Content.
Dental Revenue reserves the right to reproduce any and all designs created by Dental Revenue in print and electronic media for Dental Revenue’s promotional purposes. Client agrees to provide a design credit and link to Dental Revenue and/or its affiliates in the footer of the Client’s newly created website.
SECTION 7. CLIENT RESPONSIBILITIES AND ACKNOWLEDGEMENTS
7.1. Except as otherwise provided herein or in the descriptions of the products and services comprising the Performance Program, Client is responsible for the Content displayed on the Client Website. In the event Dental Revenue creates any Content to be incorporated into the Client Website, such Content shall be submitted to Client for approval prior to incorporation into the Client Website. Consequently, Dental Revenue shall not be responsible for any errors in Content but will use commercially reasonable efforts to correct any errors in a timely manner. Dental Revenue reserves the right to reject any Content, in its sole discretion.
7.2 Specific to the voice call services provided under this Agreement, Client acknowledges and agrees that a potential new patient placing a call to a Tracked Number automatically will be advised that the call is subject to recording and monitoring prior to the connection of the telephone call to the Client (the “Recorded Call Prompt Message”). Client further acknowledges that federal, state, and local laws may require Client to provide notice to and/or receive express consent and permission from, in writing or otherwise, all agents (including employees), independent contractors, and/or other persons who are on the receiving end of the recorded telephone calls (the “Call Receivers”). Client will provide and/or obtain all notices, consents, and permissions relating to the Call Receivers, as required by applicable state, federal, and local law. Client acknowledges and agrees that Dental Revenue and its voice call service providers, ContactAtOnce! LLC and TL Solutions, shall not be responsible for (1) the legality of recording, monitoring, storing and/or divulging telephone calls, and (2) the legality of the language used in the Recorded Call Prompt Message as these services and content pertain to federal, state, and local laws.
Client represents and warrants that in connection with its use of the voice call services, Client has reviewed the legality of recording, monitoring, storing, and divulging telephone calls, that Client is legally permitted to engage in those activities, and that Client will use the voice call service in full compliance with federal, state, and local laws. Client represents and warrants that Client has reviewed the proposed usage of the voice call service with its legal counsel, and that Client has established proper procedures to protect the privacy of the potential new patients and the Call Receivers. In the event the Recorded Call Prompt Message requires a revision in order to comply with applicable law, then Client will promptly advise Dental Revenue in writing of that fact and will provide Dental Revenue a copy of Client’s attorney’s legal opinion advising the exact language that is required in the Recorded Call Prompt Message in order to comply with applicable law.
SECTION 8. PAYMENT
As consideration for the products and services provided hereunder and the license granted hereby, Client shall pay Dental Revenue the Fees set forth on Exhibit A.
Client will (i) place a valid credit card on file with Dental Revenue which will be debited each month, in advance, beginning on the day of the launch of the Client Website in the amount of the monthly Fee until cancelled as provided herein. All services and any Software licenses granted hereunder will be suspended if any payment is not received by Dental Revenue within ten (10) days of the date payment is due. If the launch of the Client website is unduly delayed for more than ten (10) days due to Client’s acts or omissions, Dental Revenue has right to begin the debiting the monthly Fee using the Client’s credit card on file.
SECTION 9. CONFIDENTIAL INFORMATION
During the term of this Agreement, each party may receive confidential Information from the other. Neither party shall use or disclose the confidential information of the other except as expressly authorized by this Agreement or as is necessary for performance under this Agreement. Each party will use commercially reasonable efforts to maintain the confidentiality of all such confidential information which effort, in any event, shall be no less than the effort such party uses to protect its own confidential information.
SECTION 10. TERM AND TERMINATION
The initial term of this Agreement shall be 12 months (the “Initial Term”). This Agreement shall automatically renew for additional successive 12-month terms unless cancelled upon written notice given at least 30 days prior to the expiration of the then current term. Sections 11, 12, 13, 14 and 15 shall survive the expiration or termination of this Agreement.
SECTION 11. REPRESENTATIONS AND WARRANTIES
Client represents and warrants that: (i) it is the owner or is licensed to use and display the Content; (ii) the Content does not and will not violate any law or regulation, including but not limited to laws governing false or deceptive advertising, sweepstakes, comparative advertising, or trade disparagement; (iii) the Content does not and will not: (a) contain any misrepresentation or content that is defamatory; (b) infringe upon or violate any third party rights including, without limitation, any rights of privacy or publicity; (c) contain content that is violent, obscene, or offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive; or (d) promote or support gambling, illegal sweepstakes or contests; or encourages site traffic in exchange for money, gift cards, products or other similar incentives.
SECTION 12. INDEMNIFICATION
Client will indemnify, defend and hold Dental Revenue, its agents, affiliates, and licensors harmless from any third-party claim or losses, costs or liability arising out of or relating to the Content including, without limitation, claims that the Content or any part thereof infringes upon any third party rights.
Additionally, as further consideration for provision of services under this Agreement, Client agrees to indemnify, defend and hold harmless Dental Revenue, ContactAtOnce! TL Solutions and their respective officers, shareholders, directors, employees, agents and affiliates (collectively, the “Indemnified Parties”), against all third party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, charges, expenses (including attorneys’ and accountants’ fees and disbursements) and costs (collectively, “Claims”), incurred by, borne by or asserted against any of the Indemnified Parties to the extent such Claims relate to, arise out of or result from the breach of any representation, warranty or covenant of Client contained in Section 7.2, above.
SECTION 13. DISCLAIMER
DENTAL REVENUE’S SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND PROVISION AND/OR USE OF DENTAL REVENUE SOFTWARE AND SERVICES ARE AT CUSTOMER’S SOLE RISK. Nothwithstanding anything to the contrary, Dental Revenue’s services shall be performed in a good and workmanlike manner. The intent of Dental Revenue and the Client is to use services herein to market the Client’s website to generate qualified sales leads and customer website visits. Dental Revenue makes no guarantee that its advertising and marketing services and Software will generate any business or leads. DENTAL REVENUE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIRD PARTY SOFTWARE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
SECTION 14. LIMITATION OF LIABILITY
EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF i) THE AMOUNTS PAID OR OWING DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, or ii) FIVE THOUSAND DOLLARS ($5,000.00). NEITHER CLIENT NOR DENTAL REVENUE WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE OR LOSS OF DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN ADDITION, DENTAL REVENUE WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM CLIENT’S USE OF THE SOFTWARE, UNLESS A SOFTWARE DEFECT IS THE DIRECT AND PROXIMATE CAUSE OF SUCH LOSS AND DENTAL REVENUE DOES NOT COMMERCIALLY REASONABLE REMEDIARY STEPS TO LIMIT THE LOSS INCURRED. THE LIMITATION OF LIABILITY CONTAINED IN THIS SECTION 14 SHALL NOT APPLY TO ANY BREACH OF SECTION 9, ABOVE OR TO THE INDEMNITY PROVIDED IN SECTION 12, ABOVE.
SECTION 14. GENERAL
This Agreement shall be governed by the laws of the State of Maryland without regard to its choice of law rules. The parties hereby consent to personal jurisdiction and venue in the State of Maryland. If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such provision shall be deemed severed from this Agreement and the remaining provisions shall remain in full force and effect. This Agreement may be freely assigned by Dental Revenue to any successor thereof without the consent of Client. This Agreement may not be assigned by Client without the expressed written consent of Dental Revenue.
This Agreement and its Exhibits are the entire Agreement between the parties hereto and supersedes any all prior oral and written agreements between the parties hereto with respect to the subject matter hereof.
This Agreement, or any part hereof, may be amended from time to time hereafter only in a writing executed by the parties hereto.