By starting a trial on any page on LeverageYourReviews.com website the person starting the trial (hereinafter, “Subscriber”) agrees to this Service Agreement with an Effective Date being when the Subscriber starts their trial and submits the trial order accepted and executed by AcTuated Marketing™, an Oklahoma Limited Liability Company (hereinafter, “Provider”). The Date on the original order shall be the “Effective Date” of this Service Agreement, and stored with the Subscribers IP Address and billing address from their credit card.
1. Definitions
1.1 “Confidential Information” means, in respect of a party, all data and information of a confidential nature, including know-how and trade secrets, relating to the business, the affairs and any development projects or other products or services of such party. Confidential Information may be communicated orally, visually, in writing or in any other recorded or tangible form. Data and information shall be considered to be Confidential Information if (a) the relevant party has marked them as such, (b) the relevant party, orally or in writing, has advised the other party of their confidential nature, or (c) due to their character or nature, a reasonable person in a like position and under like circumstances would treat them as secret and confidential;
1.2 “Costs” means all costs and indirect costs incurred by Provider in the performance of the Services under this Agreement;
1.3 “Parties” means the named parties to this Agreement and their respective successors and assigns, and “Party” refers to any one of them, as the context requires;
1.4 “Services” or “Scope of Work” means the services and the scope of work detailed in Exhibit A, incorporated here by reference, with the same force and effect as though fully set forth herein, and includes and is not limited to streaming widgets to the Subscribers Website(s); all services may be amended by the parties in writing from time to time with 30 days written notice and either party may decline charges and end this agreement;
1.5 “Service Fees” means ascribed to such term in Exhibit A.
2. Services
2.1 Engagement. Subject to the terms and conditions of this Agreement (including Subscriber’s obligation to pay for Service access), Provider shall perform the Services listed on Exhibit A.
2.2 Restrictions on Use. Subscriber agrees, represents, and warrants to Provider, both during and after the term of this Agreement, the following provisions:
(a) Unless expressly authorized in the Permitted Applications, the Service is for the sole use within Subscriber’s own organization and by Subscriber’s own employees or agents. The Service may not be shared with affiliates or any third party, including joint marketing arrangements and only for one website per subscription as shown in Exhibit A.
(b) Unless expressly authorized in the Permitted Applications, Subscriber shall not: (i) disclose, use, disseminate, reproduce or publish any portion of the Service in any manner, (ii) permit any parent, subsidiaries, affiliated entities or other third parties to use the Service or any portion thereof (iii) process any portion of the Service or permit any portion of the Service to be processed with other data or software from any other source, (iv) allow access to the Service through any terminals located outside of Subscriber’s operations, or (v) use the Service to create derivative products.
(c) Subscriber shall (i) abide by all prevailing federal, state, and local laws and regulations of any kind governing fair information practices and consumers’ rights to privacy, including without limitation any applicable non-solicitation laws and regulations; and (ii) limit access to consumer information to those individuals who have a “need to know” in connection with Subscriber’s business and will obligate those individuals to acknowledge consumers’ rights to privacy and adhere to fair information practices and consumer’s right to privacy.
(d) Subscriber shall not use the Service in any way that (i) infringes on any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, (ii) violates any law, statute, ordinance or regulation, or (iii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
(e) Unless expressly authorized in the Permitted Applications, Subscriber shall not remove, alter or obscure any proprietary notices in the Service or other materials provided by Provider hereunder and shall reproduce all such notices on all copies or portions thereof; and Subscriber shall not provide or cause to be provided the Service to a Processor.
2.3 Relationship Between Parties. Provider will act as an independent contractor under the terms of this Agreement and to perform specific Services. Provider shall retain the power and authority to supervise and control performance of the Services by Provider’s employees, including the power to discipline, hire and fire Provider’s employees. Nothing in this Agreement shall be construed to (a) give either Party the power to direct or control the daily activities of the other Party, or (b) constitute the parties as employer and employee, franchisor and franchisee, licensor and licensee/sublicensor, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. Provider recognizes that the needs of Subscriber may change over the course of this Agreement, and will accommodate such changing needs with modification of the specified Services by mutual agreement based on an equitable shift in work effort.
2.4 Provision of Information and Personnel. Subscriber shall make available to Provider such information as is reasonably required for Provider to effectively fulfill and perform the Services. Such information includes, but is not limited to, monthly updates on performance of Services for the duration of this Agreement or any amendments thereto. Notwithstanding the foregoing, Subscriber agrees to make its team available to Provider according to the relevant areas of responsibility as needed for completing the Scope of Work or Services.
2.5 Failure by Subscriber of Delivery of Information. Subscriber shall deliver all information necessary for Provider to perform the Services listed in Exhibit A. In the unlikely event, that Subscriber cannot deliver the information to Provider, then Subscriber shall not hold Provider liable for failure of execution of Services listed in Exhibit A.
3. Consulting Fees, Other Fees, Expenses, and Invoices
3.1 Costs of Performing Services. If applicable, all costs (such as travel) reported by Provider to Subscriber pursuant to this Agreement shall be reasonable and necessary costs and pre-approved by the Subscriber. Subscriber shall reimburse Provider for all pre-approved Costs.
3.2 Invoice and Payment. Provider shall submit invoices to Subscriber for the Service Fees, together with the written report of Costs as provided under 3.1 above, at such times and for such periods and upon such payment terms as may be agreed from time to time between the Subscriber and the Provider. All Service Fees shall be payable in US Dollars via Providers Payment System which may change from time to time at the sole discretion of the Provider.
4. Consideration
4.1 Calculation of Service Fees. In consideration for the Services performed by Provider hereunder, Subscriber shall pay all Provider’s Costs plus the fees for Services and/or Scope of Work and corresponding payment terms as specified in Exhibit A (collectively, the “Service Fees”). The Service fees shall be paid monthly within seven (7) days of Provider invoice, unless provided differently in Exhibit A.
4.2 Billing; Payments; Late Fees. At the end of each Provider monthly billing cycle, Provider will invoice Subscriber for all Fees incurred by Subscriber during such billing cycle. Subscriber will pay the invoice in full within seven (7) days of receipt. If full payment is not made, a charge equal to one and one-half percent (1.5%) or $25.00 whichever is greater, will be added to the balance due, not to exceed the maximum legal limit permitted by law. If Subscriber becomes thirty (30) or more days past due, the Services shall be suspended until all past due charges are paid plus a reactivation charge of One-Hundred and Ninty-nine US Dollars ($199.00), and Subscriber shall be in default of this Agreement. Subscriber will continue to be responsible for any monthly minimum charge during any period that Services are suspended or not delivered due to Subscriber’s breach. If it becomes necessary for Provider to enforce this Agreement through an attorney, collection agency, or directly through small claims court, Subscriber shall pay all attorney’s fees, agency fees, court costs, and other collections costs, including without limitation post-judgment costs for legal services at trial and appellate levels. Delinquency may affect Subscriber’s credit rating.
4.3 Taxes. Each Party shall bear and pay all of its own taxes (including, without limitation, income taxes) arising under applicable laws in connection with the performance of this Agreement.
5. Records
At all times during the term of this Agreement, Subscriber shall maintain full, complete and accurate books of account and records with regard to its activities under this Agreement.
6. Term
6.1 Term. The initial term of this Agreement is listed in Exhibit A.
7. Use and Training
Subscriber shall limit use of the Service to its employees who have been appropriately trained by the Provider.
8. Third Party Use
If the Permitted Applications include providing a Service to End Users, Subscriber agrees to contractually require all End Users to sign an agreement with substantially similar terms to this Agreement. Subscriber warrants that in no event shall End Users’ use of the data be unrestricted or expand beyond the Permitted Applications of this Agreement. This Section is not intended to provide the Service to End Users unless specifically provided for in the Permitted Applications. Subscriber shall be liable for any violation of the terms and conditions of this Agreement on behalf of the End Users, or Processor arising out of End Users’, or Processor’s use of the Service as defined under this Agreement.
9. Proprietary Information
The Proprietary Information is and shall remain the sole and exclusive property of Provider. Subscriber shall have only the limited rights with respect to the Proprietary Information expressly granted in this Agreement, and all rights not expressly granted by Provider are reserved. Subscriber agrees that only Provider shall have the right to alter, maintain, enhance or otherwise modify the Proprietary Information. Subscriber shall not disassemble, decompile, manipulate or reverse engineer the Proprietary Information and shall take all necessary steps to prevent such disassembly, decompiling, manipulation or reverse engineering of the Proprietary Information. Under no circumstances shall Subscriber sell, Services, publish, display, copy, distribute, or otherwise make available the Proprietary Information in any form or by any means, except as expressly permitted by this Agreement, including without limitation the transfer to a third party or, if not expressly prohibited by this Agreement, as allowed under the fair use provision of the Copyright Act. Subscriber will take all reasonable steps, in accordance with the best industry practices, to protect the security of the Proprietary Information and to prevent unauthorized use or disclosure. Subscriber is responsible for all access to and use of the Proprietary Information by Subscriber’s employees or agents or by means of Subscriber’s equipment or Subscriber’s Provider usernames and passwords, whether or not Subscriber has knowledge of or authorizes such access or use.
10. Consumer Privacy
Subscriber acknowledges that the Service, while possibly comprised in part of data keyed in by the Subscriber, describes information that may be deemed to be sensitive information by some consumers. It is the policy of Provider to respect the request of consumers to remove their name and/or picture(s) from use in solicitation. Subscriber’s agreement to comply with this policy is an integral condition to Provider entering into this Agreement.
11. Provider Warranties, Indemnification & Disclaimers
Provider hereby represents and warrants that it has (a) qualified personnel, appropriate facilities and adequate resources in order to discharge the Services in a timely and efficient manner, and (b) the necessary experience required to perform the Services in a competent and professional manner. EXCEPT AS OTHERWISE STATED IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER NEITHER ASSURES NOR ASSUMES ANY LIABILITY TO ANY PERSON OR ENTITY FOR THE PROPER PERFORMANCE OF SERVICES. PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS COMPLETE OR FREE FROM ERROR, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICE, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE.
12. Provider’s Limitation Of Liability
PROVIDER SHALL HAVE NO LIABILITY UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT FOR ANY LOSS, LOSS OF PROFIT OR REVENUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF PROVIDER IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
13. Subscriber’s Indemnification
Subscriber agrees to indemnify, defend and hold Provider harmless from and against all third party claims, losses, liabilities, costs and expenses arising out of or related to the use of the Service by the Subscriber, or attributable to Subscriber’s breach of this Agreement, provided that Provider gives Subscriber prompt written notice of any such claim.
14. General Provisions
14.1 Proprietary Marks. Neither party will use, or permit their respective employees, agents and subcontractors to use the trademarks, service marks, copyrighted material, logos, names, or any other proprietary designations of the other party, or the other party’s affiliates, whether registered or unregistered, without such other party’s prior written consent. Subscriber gives Provider license to use the subscribers proprietary marks on services for this agreement.
14.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes any prior understanding or agreement, oral or written, relating to the Service. Any alterations to this agreement must be in writing and signed by both parties.
14.3 Severability. If any of the provisions of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
14.4 Waiver; Modifications. No waiver by either party of any breach by the other party of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of the same or any other provision hereof. No such waiver shall be effective unless in writing and then only to the extent expressly set forth in writing. No modifications of this Agreement shall be effective unless in writing and signed by both parties.
14.5 Survival. The following sections shall survive expiration or termination of the Agreement and shall continue in full force and effect until fully satisfied: 3, 4, 6, 11, 12, 13, 14.
14.6 Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. The IP Address with the invoice from the valid order form starting a trial, received by either party by facsimile or PDF is binding upon the other party as an original order to start this agreement. The parties shall treat a photocopy of such facsimile as a duplicate original. If this Agreement is executed in counterparts. By ordering the Trial Subscription, the Subscriber represents that they are duly authorized to do so by and on behalf of the party for whom they are signing, and the Provider represents they accept this agreement by starting the trial for the Subscriber.
14.7 Governing Law and Forum; Attorneys’ Fees. The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the United States of America applicable to agreements executed and to be performed solely within such Country. Any dispute arising hereunder shall be settled in a court of law in the City Of Oklahoma city, in the Country Of the United States of America. Each of the parties agrees that it shall not seek a jury trial in any proceeding based upon or arising out of or otherwise related to this Agreement or any of the other documents and instruments contemplated hereby and each of the parties hereto waives any and all right to such jury trial. The prevailing party shall be awarded its reasonable attorney’s fees and costs in any lawsuit arising out of or related to this Agreement.
14.8 Uncontrollable Events. No party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of such party. The time for performance of any act delayed by such causes shall be postponed for a period equal to the delay; provided, however, that the party so affected shall give prompt notice to the other party of such delay. The party so affected, however, shall use its best efforts to avoid or remove such causes of nonperformance and to complete performance of the act delayed, whenever such causes are removed.
14.9 Assignment. Subscriber may not assign or transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of Provider, which shall not be unreasonably withheld.
14.10 Notices. Any notice or other communication required or permitted under this Agreement shall be sufficiently given if delivered in person or sent by one of the following methods: (a) registered U.S. mail, return receipt requested (postage prepaid); (2) certified U.S. mail, return receipt requested (postage prepaid); or (3) commercially recognized overnight service with tracking capabilities, email with proof of delivery by an application that tracks email deliverability online. All notices must be sent to the address or email provided to the provider by the subscriber on the order form, which if nothing else is the billing address of the payment method used for the trial.
14.11 Miscellaneous. Headings at the beginning of each section and subsection are solely for convenience and are not intended to be a part of this Agreement and shall have no effect upon the construction or interpretation of any part hereof. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine, and vice versa. This Agreement shall not be construed as if it had been prepared by either party, but rather as if it were jointly prepared. In the event that any action required by the parties hereto does not occur on a business day, the action shall be taken on the next succeeding business day thereafter. The parties hereto do not intend to confer any benefit hereunder on any person or entity other than the parties hereto and, therefore, there are no third party beneficiaries to this Agreement. The Exhibits and related Appendices to this Agreement constitute integral parts of this Agreement and are hereby incorporated into this Agreement by this reference.
By starting the trial, the subscriber shows agreement of this Service Agreement and that it has been duly executed by the parties as of the Effective Date as outlined at the outset of this service agreement.
EXHIBIT A
TO SERVICE AGREEMENT
A. PROVIDER SERVICES:
A.1. Service: Widgets owned by the Provider for use on a Website Asset of the Subscriber. 3 different widgets.
A.2. Plan: Google Plus Reviews - Monthly Plan
A.3. Upgrade/Downgrade: Subscriber can upgrade by contacting Provider and paying the difference between the plans for the time remaining until renewal is due. The Provider will upgrade the account manually and update the new renewal to be for the new plan. If downgrading, the difference of the amount per month will add more time until the renewal is time to get paid again. No refunds are available.
B. PERMITTED APPLICATIONS: In accordance with the terms and conditions of the Agreement, Subscriber and other approved third parties as specified below may use the Provider Services solely for the applications specified below.
B.1. Subscriber’s Use: Subscriber may use the Providers Services for business purposes.
B.2. Streaming Reviews Widget from Provider at internet website address (URL): https://LeverageYourReviews.com
B.3. Communications Widget from Provider at internet website address (URL): https://calls.actuatedmarketing.com
B.4. ADA Compliance Widget from Provider at internet website address (URL): https://ADAAudit.org
C. DELIVERY:
C.1. Provider shall deliver the Provider Services to by creating unique widget codes and providing them via email to the subscriber. The Subscriber has the obligation to install the codes for any of the permitted applications on pages they want the widgets to work on, or the Subscriber can pay the Provider according to the Fees in the “D” section below and the Provider will install the codes for the Subscriber.
D. FEES: Subscriber shall pay Provider the following Fees:
D.1: Initial Fee: $7.00 for 30 Days. If cancelled before 30 days the widget codes shall cease to work and this agreement shall be terminated. If they keep the service and do not cancel during the initial period, the following fees apply as shown below in D.2:
D.2: Next Period Renewal Fee: $99.00 per month, paid monthly. The charge for renewal after Initial Period shall be: $99.00 for the each month of service, cancellation does not provide refund and will cancel the renewal for the next period.
D.3: Installation: Subscriber can pay the Provider a fee of $27.00 per 5 pages for the Provider to install the codes needed for the permitted applications (hereinafter "Applications") in section "B" above, to work for the subscriber. If Subscriber pays Provider, the Subscriber is responsible for providing the Provider with all the login credentials the Providers team needs to install the code for the Applications. If the Subscriber does not provide the login credentials to the Provider within 5 working days once the Provider has the codes ready for the Subscriber, than the Provider is not responsible for installing the codes and the monies paid for that work shall not be refundable to the Subscriber.
E. SERVICE DETAILS
Streaming Reviews Widget Terms of Service:
· Provider streams ONLY 5-Star Reviews Provider finds from the Subscribers Google Business Profile or whatever Google is going by at the time of this agreement, formerly Google My Business, as well as the other review sites that the Subscriber has reviews on, that the Subscriber provides to the Provider on the client intake form we send them to after setting up their trial order.
· Provider creates a link back to the review where it was posted so website visitors can easily see all the reviews of the Subscriber including the negative reviews so they comply with current Federal Laws of the United States.
· Provider shows the review is verified because Provider verified it by viewing it on the Subscribers Google Business Profile.
· Provider provides a Call to Action for the website visitors of the Subscriber, to take the action the Subscriber wants them to take, as provided on the intake form after starting the trial.
· Provider only shows a small part of a review, which may or may not be the whole review and gives the visitors the option to click “More” to open the review to see more of the subscribers 25 Most Recent 5-Star Reviews, including the one they clicked More next to, so they can read the whole real review that the reviewer left for the Subscriber. This is in no way trying to “hide” negative reviews, it is merely putting the subscribers best foot forward, the visitor can click the review to view ALL reviews, thereby satisfying the requirement to not attempt to “HIDE” negative reviews.
· The Providers code will display the reviews in a popup window that is on either the left or the right, at the sole discretion of the Provider.
· Provider sets the colors and look and feel of the popups on the subscribers website. The subscriber can request colors but they are set that the sole discretion of the Provider.
· The Provider will add new 5-star reviews found from the Google Business Profile of the Subscriber on a regular basis, PLUS upto 39 Other Major Review Sites our team actively monitors as well as 1 additional review site of the Subscribers choice, where our team will go one time per month and get all their new reviews and manually import those ones into our system to stream to the subscribers website. The Review Directory must be approved by the Provider. The Provider may disallow any review site at it's sole discretion within reason. That Regular basis is set at the sole discretion of the Provider and may be daily, weekly or monthly. The Provider is not offering to get the subscriber more reviews from website visitors under this agreement.
Streaming Communications Widget Terms of Service:
· Provider streams a communications system to allow the website visitors of the Subscriber to connect to them to talk while they are actively on the subscribers website.
· Provider owns the phone number used for the communications streaming widget, and also owns the communications widget, Subscriber is just leasing the phone number, and the widget for as long as the Subscribers subscription is active and Provider will turn it off once Subscribers subscription is canceled.
· Subscriber Usage Limits for Communications Widget:
400 total Minutes per month, with an average use of 4 minutes per phone call that is an average of 100 phone calls per month. Once Subscriber reaches 400 minutes the widget will automatically NOT show up on Subscribers website until the next month, unless Subscriber adds more minutes. Each Text Message accounts for 2 minutes. Subscriber cannot exceed 400 total Minutes in a month on this agreement. 400 Minutes resets monthly, left over time does not roll-over.
International Calls on Communications Widget:
International Calls will use as much as 10 minutes to each 1 actually used because of the increased cost Provider has to pay. It may be only 5 to 1 but can be as much as 10 to 1, it depends on what provider is charged for the calls. International Text Messages cost 5 minutes to every 1 text message used for international numbers.
Additional Time for Communications Widget:
If Subscriber uses up the 400 minutes included on this agreement and the Communication Widget is shut off, then the Subscriber can add an allotment of time for $25.00 to turn the Call Widget back on. $25.00 allotment includes an additional 500 minutes to Subscribers account. Subscriber can add all of the $25.00 allotments Subscriber wants, each will add 500 additional minutes to Subscribers account. The $25.00 allotments are single purchases and the minutes do NOT rollover and expire at the end of the month.
Communication Widget Additional Terms:
Provider is allowing Subscribers website visitors be able to communicate with Subscribers WHILE on Subscribers website. If Subscribers is not open, Provider give the Subscriber the ability to have visitor schedule calls when Subscriber has open hours. Communications Widget will have the visitor add their phone number to the widget, and then initiate a call from Providers Communications System to the Subscriber. For it to work, the Subscriber MUST ANSWER THEIR PHONE, the Communications Widget will say that a website visitor named “visitors name” (whatever they enter on the widget above their phone number) wants to talk to them and to press 1 so it can connect Subscriber to the Visitor. IF Subscriber DOES NOT PRESS 1, IT WILL NOT CONNECT THE VISITOR TO THE SUBSCRIBER. When the person who answers the Subscribers phone Presses 1 our Communications Widget will then CALL the visitor! It does not call them if the Subscriber does not press 1.
How the Communications Widget handles calls the Subscriber does not answer:
It will tell the Subscribers visitor the Subscriber is not available if Subscriber does not press 1 or answer the phone. Provider is not responsible for any call outcome. This service is merely connecting the Subscribers website visitor and the Subscriber on a phone call. Provider is not responsible for any missed calls the Subscriber may have, or how Subscribers employees talk to the callers or any other issue that may resolve due to the Subscribers use of this system.
Text Messages.
If enabled, the Communications Widget will send a Text Message to the subscriber that they have a text message from a website visitor, and that text message to the Subscriber counts towards the Subscribers monthly allotment. Subscriber cannot reply to people who talk to them on Subscribers website from the Communications Widget, Subscriber will have to log in to their account that the provider provides to the Subscriber, or into the Providers custom mobile app if Subscriber has access to it. Subscribers can purchase access to Providers custom mobile app for $20 per month to be able to respond faster and easier right from Subscribers phone to people who talk to them on Subscribers website through two-way texting. The Mobile App is Optional.
ADA Compliance Widget:
· Provider will give the Subscriber code to place on the website of subscribers choice to make it ADA Compliant with the Federal Laws of the United States of America and the WCAG outside of the United States.
· Subscriber is not obligated to use the code, and indemnifies that Provider if the Subscribe is sued for not being ADA Compliant and did not have the code installed to make the Subscriber ADA Compliant.
· ADA Compliance is provided for FREE With Subscribers Active Subscription. Customization will cost Subscriber $125 per hour, or Subscriber can use it as the Provider provides it to the Subscriber for no additional fee. Any updates the Provider does to the Widget for ADA Compliance is up to the Provider unless the Subscriber is paying the Provider for customizations.