Bay Street Software Brand Networks Service Agreement Terms and Conditions

Effective July 4, 2001

Customer desires to purchase, and Bay Street Software Inc. and/or Bay Street Branding, LLC and/or Zoomiti, LLC, its applicable companies, affiliates and subsidiaries, (“Bay Street Software”) desires to provide to Customer the services set forth in the Agreement (the “Services”) subject to these Terms. In consideration of the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Bay Street Software agree to the following:

 1. Services

Bay Street Software Ads Service. The terms of this paragraph apply only if Customer has purchased the Bay Street Software Ads Service. The Bay Street Software Ads Service is a managed service. Bay Street Software will create Ads based on the Customer Content, and will distribute the Ads through the Bay Street Software Distribution Network. The Monthly Sponsored Advertising Budget will be used as a result of clicks, calls or other placement or advertising services in connection with distribution of Ads through the Bay Street Software Distribution Network. In any monthly billing cycle, Bay Street Software may use more than 100% of the Monthly Sponsored Advertising Budget. Any balance of the Monthly Sponsored 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 Sponsored Advertising Budget at the end of the last month of the Bay Street Software Ads Service is due at that time.

The terms of this paragraph apply only if Customer has purchased the Bay Street Website Package - ZoomiSite. For Locations, the Zoomiti includes the application of “on page” and “off page” search engine optimization tactics and the availability of Foundations, which includes features designed to achieve a higher ranking for each ZoomiSite in search engine results and optimization for the Location's business listing in Google™ maps/places. Customer acknowledges that search results and search engine rankings are influenced by several factors, and Bay Street Software does not guarantee any particular placement, position or rank for each Location's ZoomiSite or business listing in any search results. For Customer, the Zoomiti 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 and a network communication portal for each location to see the available marketing programs offered by corporate and enroll in these programs.

Bay Street Website / Portal Services. The terms of this paragraph apply only if Customer has purchased the Bay Street Website / Portal Service. The Bay Street Website / Portal 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 and a network communication portal.

Bay Street Software Web Service. The terms of this paragraph apply only if the Services include ZoomiSites. Bay Street Software will implement one local website (the “ZoomiSite”) for each Location. Bay Street Software will build, host and maintain each ZoomiSite and will register and administer the ZoomiSite URL. All Locations will use the same ZoomiSite template. Unless Customer purchases the Custom ZoomiSite Template Service, Customer will select the template from Bay Street Software's library of ZoomiSite templates.

Custom ZoomiSite Template. The terms of this paragraph apply only if Customer has purchased the custom ZoomiSite solution. Bay Street Software will create a custom solution to be used as the basis for all local ZoomiSites. Bay Street Software will provide two rounds of design and client review of the custom solution.

 Lead Tracking. As part of the Service, Bay Street Software may provide the temporary use of telephone number(s) that are used to track telephone leads generated from each ZoomiSite.

Facebook Advertising Service. Bay Street Software will prospect and/or retarget new potential customers, past website visitors and existing prospects/customers on behalf of the Advertiser (Customer) throughout the Facebook channel via mobile app, web, and newsfeed inventory. The Facebook Advertising Service is a managed service. Bay Street Software and Advertiser (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 the Advertiser (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, Bay Street Software 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.

 2. License

Customer hereby grants Bay Street Software 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 Customer Content (or any portions thereof), (b) use Customer's name and logo, (c) distribute the Ads and Customer Content to the Bay Street Software 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 Bay Street Software and Customer, Bay Street Software owns any content (other than Customer Content), 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. Customer is responsible for maintaining the confidentiality of the passwords to its Bay Street Software account, and Customer may not grant access to its Bay Street Software account or share any data generated from the Services with any third party without Bay Street Software's prior written consent.

If Customer elects not to renew this Agreement but nonetheless desires its Bay Street Software created digital marketing to continue to use their respective solutions, social networking accounts, local search database accounts, Maps, tracking numbers and/or keywords, etc. after termination of this Agreement and has paid all amounts due to Bay Street Software, then Bay Street Software will, within ten (10) business days notify Customer of their decision to provide account logins.

 4. Payment

Customer will pay Bay Street Software all amounts due under this Agreement monthly, in advance. If Customer is paying by credit card or eCheck, (a) Customer hereby irrevocably authorizes Bay Street Software or Zoomiti, LLC to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, in advance, and (c) if Customer's credit card expires, Customer hereby gives Bay Street Software permission to submit the credit card charge with a later expiration date. If Bay Street Software 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 Bay Street Software 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 Bay Street Software 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 Bay Street Software for all charges and fees Bay Street Software incurs in collecting payment.

 5. Representations and Warranties

Customer represents and warrants throughout the Term and for any period thereafter that a Location continues to use the ZoomiSite that (a) it has the full right, power and authority to grant the licenses and related rights granted herein and has acquired any and all third party clearances, permissions and licenses that are necessary in connection with Bay Street Software's exercise of such rights and licenses, (b) the Customer Content is true and accurate, does not violate any law or regulation and is not misleading, defamatory, libelous or slanderous, and (c) Bay Street Software's use of the Customer Content in connection with providing the Services will not infringe upon or violate the rights or property interests of any third party. Customer will notify Bay Street Software in writing promptly if any of the foregoing representations and warranties becomes untrue.

6. Call Recording and Monitoring

For quality assurance, Bay Street Software records and/or monitors calls between Customer and Bay Street Software agents, employees and/or its affiliates regarding the Services (the “Service Calls”). If the Services include call recording or monitoring, Bay Street Software will record and/or monitor incoming calls and e-mails between the Location, or the Location's agents, employees, and/or its affiliates and people who contact the Location through the tracking telephone numbers or contact forms Bay Street Software provides (the “Inbound Calls” and, collectively with Service Calls, “Call Recording and Monitoring”). By this Agreement, Customer, on behalf of itself and each Location, consents to any and all Call Recording and Monitoring performed by Bay Street Software or its agents, employees and/or its affiliates. Customer acknowledges that it, or the applicable Location, is responsible for notifying and obtaining consent to Call Recording and Monitoring from all of its agents (including employees and independent contractors) who may be recorded or monitored in a Service Call or Inbound Call (the “Recorded Persons”). It is Customer's sole responsibility to provide and/or obtain (or require each Location to provide and/or obtain), and Customer covenants that it will provide and/or obtain (or require each Location to provide and/or obtain) all notices, consents, and permissions relating to Recorded Persons as may be required by applicable laws and regulations.

 7. Indemnification

Customer agrees to indemnify, defend and hold harmless Bay Street Software, its successors, officers, directors, employees, designees and agents from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from the Customer Content, use of the Services, or breach (or alleged breach) of Customer's representations, warranties and covenants under this Agreement.

8. Disclaimers

THE SERVICES AND BAY STREET SOFTWARE, INC. DISTRIBUTION NETWORK ARE PROVIDED ON AN “AS IS” BASIS. UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, BAY STREET SOFTWARE MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. BAY STREET SOFTWARE RESERVES THE RIGHT TO REMOVE CUSTOMER CONTENT OR DECLINE ANY SERVICE TO THE EXTENT THE CUSTOMER CONTENT OR CUSTOMER'S USE OF THE SERVICE DOES NOT COMPLY WITH THE TERMS OF THIS AGREEMENT OR ANY APPLICABLE LAWS; PROVIDED, HOWEVER, THAT CUSTOMER MAY NOT EXPRESSLY OR IMPLIEDLY RELY UPON BAY STREET SOFTWARE'S APPROVAL TO SUPPORT ITS COMPLIANCE WITH ANY APPLICABLE LAW, RULE OR REGULATION. NOTHING CONTAINED IN THE FOREGOING SHALL SHIFT THE ULTIMATE LEGAL OR REGULATORY COMPLIANCE OBLIGATION IN ANY MANNER WHATSOEVER FROM CUSTOMER TO BAY STREET SOFTWARE, IT BEING MUTUALLY INTENDED THAT SUCH OBLIGATION IS AND SHALL REMAIN SOLELY WITH CUSTOMER. BAY STREET SOFTWARE IS NOT PERMITTED TO PROVIDE, AND DOES NOT PROVIDE, LEGAL ADVICE, AND CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE OF THE ADS AND ZoomiSite AND USE OF THE SERVICES IN COMPLIANCE WITH ALL LOCAL, STATE AND FEDERAL LAWS AND REGULATIONS AND PROFESSIONAL RULES AND REGULATIONS APPLICABLE TO THE CUSTOMER AND CUSTOMER'S EMPLOYEES, CONTRACTORS AND REPRESENTATIVES. RECORDED CALLS MAY NOT MEET HIPAA REQUIREMENTS AND MAY NOT BE PRIVILEGED UNDER APPLICABLE LAW.

9. Limitations

BAY STREET SOFTWARE, INC. WILL NOT BE LIABLE TO CUSTOMER (NOR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM CUSTOMER'S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING COST OF COVER, LOST REVENUES OR PROFITS OR LOSS OF BUSINESS OR DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER Bay Street Software WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF. CUSTOMER SHALL HAVE NO RECOURSE AGAINST Bay Street Software OR ITS DESIGNEES FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OF CUSTOMER'S PROPRIETARY RIGHTS BY THIRD PARTIES OR FOR LOSS OR HARM DUE TO UNAUTHORIZED USE OF CUSTOMER'S ADS OR ZoomiSite BY THIRD PARTIES. IN ANY EVENT, BAY STREET SOFTWARE, INC. MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO BAY STREET SOFTWARE, INC. HEREUNDER WITHIN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. YOU ACKNOWLEDGE THAT THESE LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN AND THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF PORTIONS OF THIS AGREEMENT ARE FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.

10. Taxes

Customer understands and agrees that portions of the charges made under this Agreement may be for items or services that are subject to sales or other transfer taxes for which Customer shall be liable, and Customer agrees that Bay Street Software may make allocations of the base purchase prices under this Agreement to the taxable items or services provided to Customer and charge Customer such taxes in addition to the other base pricing provided for under this Agreement. Customer agrees to timely pay such tax charges by the same payment due dates as the charges for the items or services that are subject to tax. In the event Bay Street Software fails to timely charge sales or other transfer taxes it may, after the fact, charge Customer applicable taxes, and Customer agrees to pay such charges within 30 days of receipt of invoices therefore.

11. 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 Bay Street Software Service Agreement, the term of the Commitment Period will automatically renew for the length of the initial Commitment Period described in the Bay Street Software Service Agreement unless the Customer provides Bay Street Software with notice of termination at least thirty (30) 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 Interactive Marketing Specialist. If the Go-Live Date has not occurred within 60 days of the Effective Date as a result of Customer delay, then Bay Street Software may terminate the Agreement without refund. If Customer breaches any provision of this Agreement, Bay Street Software may suspend Customer's Services. If such breach is capable of being cured, Customer will have 10 days to cure such breach; provided that Bay Street Software 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, Bay Street Software may terminate this Agreement and/or pursue all other available remedies, including recovery from Customer of Bay Street Software's costs and attorneys fees incurred in pursuing such remedies. Notwithstanding the foregoing, Bay Street Software 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 3-10, Paragraphs 13-15, and this sentence shall survive the termination of this Agreement.

12. HIPAA.

If Customer is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and if Bay Street Software is a Business Associate of Covered Entity under the HIPAA Privacy Regulations, the HIPAA Security Regulations and the HITECH Standards, then the terms of the Business Associate Agreement are hereby incorporated by reference herein.

13. General

This Agreement (a) is governed by the laws of the State of South Carolina, excluding its conflict of laws principles, (b) may be amended only in a writing signed by both parties or by Bay Street Software e-mailing revised terms and conditions to Customer or posting revised terms and conditions in Customer's Bay Street Software account and (c) together with all terms and conditions incorporated by reference herein, constitutes the complete and entire expression of the agreement between the parties, and supersedes any and all other representations, warranties and agreements, whether written or oral, with respect to the subject matter hereof. The exclusive venue for any dispute relating to this Agreement shall be York County, South Carolina, and Customer hereby waives any jurisdictional, venue or inconvenient forum objections thereto. CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL OR TO PURSUE OR PARTICIPATE IN ANY CLAIM AS A REPRESENTATIVE ACTION OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Prior to initiating any legal action, the initiating party shall give the other party 60 days written notice of its intent to file an action. Bay Street Software will provide such notice by e-mail to Customer's e-mail address on file with Bay Street Software, and Customer must provide such notice by e-mail to service@zoomiti.com. During such notice period, the parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute arising under or relating to this Agreement shall finally be settled in a court of competent jurisdiction as set forth herein. Bay Street Software may assign this Agreement, in whole or in part, and the parties' rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns. These terms shall be severable and construed to the extent of their enforceability in light of the parties' mutual intent. Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section. For the avoidance of doubt, Bay Street Software is an independent contractor of Customer and does not have the authority to make any commitment of any kind that is binding on Customer. Customer expressly agrees that any varying or additional terms contained in any purchase order or any other written notification or document issued by Customer in relation to the Services shall be of no effect and may be accepted for administrative convenience only.

14. Confidentiality

Company 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.

15. Defined Terms

(1) “Ads” means advertisements created by Bay Street Software 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) “Customer Content” means 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, the content of Customer's website that Bay Street Software uses to create an ZoomiSite and any third party logos (e.g., society memberships). (4) “Go-Live Date” means the date that the first Location's ZoomiSite is live or, for a different service, the first day Bay Street Software provides the applicable Service. (5) “Bay Street Software Content” means any content that is not Customer Content. (6) “Bay Street Software Distribution Network” means the network of advertising channels through which Bay Street Software distributes the Ads, including (i) Google (the “Google Network”), (ii) all other advertising channels (the “Bay Street Software Network”) and (iii) all other forms of media, applications, and devices.

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