THESE TERMS AND CONDITIONS FORM A PART OF AND ARE INCORPORATED INTO THE ONLINE SERVICES AGREEMENT BETWEEN BELL AND CUSTOMER.
1. BELL is authorized to purchase and commit to purchase on Customer’s behalf such goods, services, media time and media space from third party vendors as are required for BELL to execute the campaign agreed upon by BELL and Customer
2. If BELL is requested by Customer to purchase stock images, Customer will be responsible for the cost of all stock image purchases in addition to any other costs and fees required hereunder.
3. Customer warrants that all approved designs do not infringe upon any trademark, copyright or other intellectual property rights of any other person or entity or violate any applicable law. Customer agrees to defend, indemnify and hold BELL and its managers, members, employees, agents and representatives free and harmless from any and all loss, liability, damages, claims and demands, including, without limitation, court costs and attorney’s fees, arising out of or related to (a) the character, contents or subject matter of any content displayed or used pursuant to this Agreement, (b) Customer’s breach or default of this Agreement and (c) any other third party claims arising in connection with or related to this Agreement and not caused directly and solely by the gross negligence or willful misconduct of BELL.
4. Customer and BELL recognize that BELL may use a third party advertisement server to serve Customer’s advertisements. Customer agrees to abide by the terms, conditions, policies, and procedures of any third party advertisement server. Customer recognizes that the decision to accept Customer’s advertisements, including any language or images contained therein, is within the sole discretion and is the sole decision of the third party advertisement server. A decision by a third party advertisement server to reject any of Customer’s advertisements, including any language or images contained
therein, shall not constitute a breach of this Agreement or any other agreement between Customer and BELL.
5. In the course of executing and servicing the campaign agreed upon by BELL and Customer, BELL has agreed to provide to Customer digital marketing services to optimize the campaign. Customer recognizes that BELL utilizes proprietary and
confidential models to provide such digital marketing services. BELL’s proprietary and confidential models are the work product and sole property of BELL. Customer further recognizes that BELL utilizes certain third party vendors, which, among other things, may provide data to BELL that may be used to provide such digital marketing services. Any third party vendor account, including without limitation the data provided and collected via that third party vendor account, is the sole property of BELL. Customer has no right of access to any third party vendor account utilized by BELL to provide digital marketing services to Customer.
6. Nothing in this Agreement permits Customer to use any intellectual property of BELL without the express written consent
7. Customer shall comply with all laws and regulations governing the display or use of the content provided herein, including, without limitation, obtaining all licenses, permits and registrations and fulfilling all other requirements of governmental agencies, as applicable.
8. BELL will send an invoice to Customer for its services in accordance with the fee schedule described above. A regular billing period is defined as a thirty (30) day period with all payments due before 30 days. Payments shall be made by ACH Draft.
9. Upon default in the punctual payment of all or any of the fees due hereunder or any other material breach by Customer of the terms hereof, BELL, at its sole option, may accelerate the entire amount of fees contracted for herein to be due and payable immediately, and unless the same is promptly paid to BELL, BELL may, at its sole option, discontinue without notice the work contracted for herein; provided, however, that such discontinuance shall not relieve the Customer of any other amounts due hereunder. This remedy shall be in addition to any other remedies BELL may have at law or in equity.
10. All payments in arrears shall bear interest at the lesser of 1 1/2% per month or the highest interest rate permitted by applicable law. In addition, Customer shall pay reasonable collection agency and attorney’s fees required to collect such past due amount.
11. In the event of litigation relating to the subject matter of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs. The parties agree that all actions and proceedings relating directly or indirectly hereto shall be
litigated in the courts of Montgomery County, Alabama. This Agreement shall be governed by and interpreted under the laws of the State of Alabama without regard to its conflict of interest laws that would cause the application of the law of any other state to govern.
12. This Agreement constitutes the entire agreement between BELL and Customer with respect to the subject matter hereof. BELL shall not be bound by or subject to any stipulations, conditions or agreements not set forth in this Agreement. This Agreement may only be amended by a written document signed by BELL and Customer. Waiver by BELL of any breach of any provision shall not constitute a waiver of any other breach of that provision or any other provision.
13. BELL reserves the right to determine, in its sole discretion, if copy and design are in good taste and within the moral standards of the community and are acceptable for the provision of services hereunder.
14. BELL reserves the right to reject or withdraw, in its sole discretion, any copy either before or after work is performed under this Agreement. BELL further reserves the right, in its sole discretion, to terminate the contract for any reason at any time.
15. BELL may extend credit terms to Customer under conditions acceptable to BELL in its sole discretion. If credit has been extended, net cash payment is required at the most, thirty (30) days after the date of billing.
16. The customary agency commission, not to exceed 15%, will be allowed to accredited advertising agencies, if prior written notice thereof is provided to BELL. Agency commission will be forfeited after sixty (60) days, if payment is not received as outlined above.
17. All contracts are non-cancellable by Customer unless otherwise expressly agreed upon in writing.
18. BELL shall not be responsible for any failure or delay in the performance of any obligation hereunder if such failure or delay is due to a cause beyond BELL’s control including, without limitation, acts of God, wars, riots, strikes, fires, floods, shortages of labor or materials, labor disputes and governmental acts.
19. All provisions of this Agreement are severable, and the unenforceability or invalidity of any of them shall not affect the validity or enforceability of the remaining provisions of this Agreement.
20. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN, BELL HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE SERVICES TO BE PROVIDED HEREUNDER, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT.
21. BELL’s AGGREGATE LIABILITY FOR ALL CLAIMS FOR LOSS OR LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OR LIABILITY ARISING FROM NEGLIGENCE, WARRANTY, INDEMNITY OBLIGATION, CONTRACT, STRICT LIABILITY OR OPERATION OF LAW) SHALL IN NO CASE EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CUSTOMER FOR THE SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL BELL BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR PRODUCTION.