Article 1. Scope, Applicability & Note on Definitions
1.1. Scope. These terms and conditions (these “Terms”) govern the provision of services by iFrog Marketing Solutions (“iFrog”) to an automotive dealer, service provider or body shop (“Client”) that has purchased those services (“Services”) by entering into a Subscription Agreement with iFrog. (These Terms do not apply to services purchased in another fashion, such as through an OEM-level program.)
1.2. “Subscription Agreement” is the document Client signed to subscribe to the Services identified therein by placing a checkmark next to the Services being purchased.
1.3. “Service Reference Guide” refers to the document published by iFrog, written in plain language, that provides a reference for turnaround times, deadlines, methods for making requests and other operational matters. It also contains a summary of some of the key provisions from these Terms.
1.4. “Sheets” refers to tables iFrog publishes that correlate a level of service (e.g., Essential, Enhanced or Elite) with other data specific to the Service (e.g., work to be done by iFrog per level, minimum monthly budget amounts per level, paid media options available per level, etc.).
1.5. Entire Agreement. The Subscription Agreement, these Terms, the Service Reference Guide and any accompanying “Sheet” (collectively, this “Agreement”) comprise the entire agreement between iFrog and Client, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
1.6. Conflict. In the event of a conflict, the Subscription Agreement controls on prices and identification of Services under subscription. These Terms otherwise control over any other part of the Agreement. The Service Reference Guide is not intended to be contractual but merely a shorthand reference for key terms and a set of non-contractual guidelines governing the working relationship between Client and iFrog.
1.7. Note on Definitions. Generally, words or phrases used in these Terms with specific definitions have the first letter capitalized. Given that many of these words or phrases are defined in the paragraphs that give context to their meaning, specifically defined words do not appear in a section designated for definitions. However, these Terms are searchable and the definition given capitalized words can be easily located using a search feature.
Article 2. Services
2.1. L.E.A.P. iFrog offers a variety of paid media options through L.E.A.P. They include paid search, social media advertising, dynamic retargeting, display advertising and online video advertising. These offerings are subject to change. iFrog offers L.E.A.P. in three tiers based on the amount of Client’s monthly Ad Spend. The tiers are labeled Essential, Enhanced and Elite. Each tier correlates a minimum Ad Spend with a group of paid media options for each level of Ad Spend. (“Ad Spend” is defined in paragraph 8.2.) The reason for the tiered approach is iFrog believes campaigns must be adequately funded. (A little bit of a lot is generally a bad idea.) L.E.A.P. also encompasses a variety of campaign types including dealer and brand, model, vin-specific, geo-location, financing, fixed operations and others. iFrog reserves the right not to run multiple campaigns if iFrog determines that the campaigns will not be adequately funded. iFrog has no set formula for making this determination as funding is a matter of market conditions.
2.1.1. L.E.A.P. Sheet. iFrog will provide Client with a “L.E.A.P. Sheet.” The L.E.A.P. Sheet will provide a breakdown of the minimum Ad Spend and paid media options for each tier. Because digital marketing is dynamic and iFrog changes its product offerings and attributes whenever doing so yields better results, the L.E.A.P. Sheet is subject to change.
2.1.2. Monthly Flexibility. Client is subscribing to L.E.A.P., not a particular tier within L.E.A.P. As such, Client can move between tiers on a monthly basis. Client cannot switch between tiers in the middle of the month, though Client can increase its Ad Spend to provide additional budgets to existing campaigns.
2.1.3. Paid Media Management Fee. iFrog charges a percentage of the monthly Ad Spend as a Paid Media Management Fee. The percentage is identified in the Subscription Agreement. It is important to note that the Subscription Agreement does
not identify a monthly fee amount. It only identifies the percentage of the monthly Ad Spend that iFrog will charge as a Paid Media Management Fee. This fee will fluctuate as the amount of media the Client purchases changes over time. (“Ad Spend” and “Paid Media Management Fee” are defined in paragraph 8.2.)
2.1.4. Minimum Monthly Budget. To participate in L.E.A.P., Client must commit to a minimum monthly Ad Spend of $4,750, which is the minimum Ad Spend for the Essential tier. Except as outlined below, Client’s monthly Ad Spend can never go below this number.
2.1.5. Exception to Minimum Monthly Budget. Client is permitted to drop its Ad Spend below $4,750 a month if Client agrees to pay a fixed Paid Media Management Fee of $950 for each month the Ad Spend drops below the allowed minimum.
2.1.6. Confirmation of Ad Spend & Continuation. Ad Spends are confirmed monthly. Client’s Digital Marketing Specialist will send an email to the representative Client designated as having authority to approve Ad Spends (see paragraph 4.1) and identify the amount of Client’s Ad Spend for the month, and the representative shall reply and confirm the Ad Spend. If the representative does not
respond or if iFrog is unable to confirm an Ad Spend for other reasons, iFrog will continue the Ad Spend from the previous month unless instructed otherwise by Client in writing. (“Ad Spend” is defined in paragraph 8.2.)
2.1.9. Quarterly Planning. While Ad Spends are confirmed monthly, marketing plans are developed quarterly. iFrog believes that planning solely in 30-day cycles causes Clients to miss opportunities in their market. This is because campaigns take time to optimize, and optimization builds incrementally over time. Often campaigns only reach peak optimization at or after running for 30 days. Client’s Digital Marketing Specialist will hold quarterly business reviews with Client and develop quarterly marketing plans, which iFrog will then optimize on an ongoing basis.
2.1.10. Reporting on Paid Media. iFrog will report the performance of paid media campaigns in several ways. iFrog will give Clients access to a dashboard which, when refreshed, fetches currently available performance data for website traffic and campaign performance. Once a week, iFrog will email a curated one-page report that highlights the key performance indicators that iFrog deems significant for Client’s paid media performance. iFrog will offer two performance reviews, one at mid-quarter and one at the end of the quarter. Client can also request a performance review at any time.
2.2. Co-Op. iFrog offers co-op packages to assist Clients with tracking, managing and processing co-op. The packages come in three tiers, outlined as follows:
2.2.1. Co-Op Essential. Under the Essential tier, iFrog will provide Client with the documentation necessary to obtain co-op reimbursement for all assets iFrog creates or deploys. Client assumes responsibility for submitting its own co-op documentation to the OEM.
2.2.2. Co-Op Enhanced. Under the Enhanced tier, iFrog will perform all of the work outlined in Essential but will also submit co-op documentation monthly and, when needed, appeal co-op denials, for all assets iFrog prepared and deployed on Client’s behalf.
2.2.3. Co-Op Elite. Under the Elite tier, iFrog will perform all of the work outlined in Essential and Enhanced but will also manage all of Client’s co-op, including the right to co-op reimbursement for marketing and advertising iFrog did not create or deploy. iFrog will keep Client up to date on unused co-op, help Client manage co-op spends and ensure that all claims are processed and when necessary that co-op denials are appealed.
2.3. Search Engine Optimization. iFrog’s SEO package consists of several distinct components. They include technical “backend” optimizations, the creation of backlinks (having other websites link to the website under contract), competitor research followed by optimizations designed to reverse engineer what the competition is doing, keyword research followed by modifications to existing keyword structures and optimized content creation. The purpose of this work is to increase the website’s ranking signals with search engines and to improve the relevance of specific webpages in searches that are key to driving qualified consumer traffic to automotive outlets in Client’s market. iFrog’s approach centers on the belief that Clients must focus on both ranking signals and relevance to compete effectively for organic traffic.
2.3.1. Identification and Repair of Technical Issues. iFrog uses tools to crawl a website’s URL structure and identify URLs with errors (including 404 errors, indexing errors, redirect errors, duplication errors, metadata and meta–description errors, and others), over 100 in total. iFrog resolves those errors that most negatively impact the website’s ranking factors, or for those significant errors iFrog cannot resolve, iFrog will assist Client in having its website provider perform the fix.
2.3.2. Backlinks. iFrog creates two non-directory backlinks for the website contracted to receive SEO services each month. The links are attached to keywords iFrog selects based on research. iFrog only uses “white hat” link-building practices designed to improve the authority of Client’s website with search engines. iFrog places backlinks, for example, editorially within the flow of the host blog’s or page’s existing content and not in “author boxes,” and iFrog only backlinks to sites with a high domain authority for quality metrics. iFrog not only backlinks to content pages it produced but also to any webpage on Client’s site that iFrog determines is appropriate.
2.3.3. Keyword Research and Optimization. In conducting keyword research, iFrog analyzes the words and phrases driving traffic to Client’s sales and service pages and singles out the key traffic drivers. iFrog then reviews existing sales and services pages to ensure that they make use of keywords iFrog has identified as being particularly effective. Similarly, iFrog conducts research into underperforming keywords and modifies pages to reduce their dependence on them.
2.3.4. Optimization Based on Client’s Competition. iFrog conducts research on Client’s competition. iFrog identifies key competitors, assesses their website’s SEO performance and determines what these dealers did to get there. iFrog then reverse engineers their efforts as an SEO strategy to help Clients better compete with them.
2.3.5. Research Pages. iFrog creates two new pieces of unique content per month for the website contracted to receive marketing services. iFrog will build the associated landing pages and include unique graphics to support the written content. All landing pages are optimized and indexed. The written content typically consists of research pages for core vehicles and comparison pages for competitive models. Content creation does not include value proposition pages.
2.3.6. Order of Work. Generation of backlinks and research pages occur twice monthly. All remaining work occurs on a rotating basis with iFrog’s SEO department assessing the hierarchy of needs and determining the order and flow of work. iFrog performs backend technical work on the website monthly, with only the order of work fluctuating.
2.4. Creative. iFrog offers creative packages in three tiers, Essential, Enhanced and Elite, with each tier providing a different level of service. iFrog also provides Client with the option of having iFrog manage the uploading and removing of creative on Client’s websites, directories and social media platforms or allowing Client to perform this work itself to save costs.
2.4.1. Creative Offerings. iFrog’s creative offerings cover a wide range of marketing assets, including monthly sales banners, search result page banners, social covers, creative for Google Posts, evergreen banners, evergreen social covers, inclement weather banners, service coupons, website popups, email campaigns and even creative used for print ads, billboards, GIFs, third-party vendor assets and more.
2.4.2. Creative Sheet. iFrog will provide Client with a Creative Sheet that breaks down the creative offerings for each of the three tiers. The Creative Sheet is subject to change.
2.4.3. Emails. The Enhanced creative package includes 2 email campaigns per month. iFrog will create the emails, including the creative and copy, and configure them for multiple email clients. The campaigns under this program can be used for either unsold, active leads or service drives. In any event, Client cannot exceed 5,000 emails per campaign without incurring an additional cost. Client has the option of either having iFrog provide Client with the code to allow Client to deploy the emails through its CRM or having iFrog deploy the emails. If iFrog deploys the emails, it will scrub the email list prior to deployment, and at the end of the campaign, iFrog will provide Client with a list of unsubscribers and bad email addresses.
2.4.4. Custom Work. The creative assets iFrog produces pursuant to a Subscription Agreement are custom–made for Client. iFrog does not “recycle” creative to use with other clients and in other contexts.
2.4.5. Creative Monthly Management Option. Under iFrog’s monthly management option, iFrog will remove any unwanted creative assets, usually installed by the OEM, and install the Deliverables it produced for Client or other assets as requested by Client. The fee for the monthly management option is set forth in the Subscription Agreement.
2.5. Organic Social Media. iFrog offers an organic social media management package that covers Facebook, Instagram and Twitter. The program ensures that valuable social media platforms serve as a channel for effective brand and sales messaging. iFrog serves social media followers with original, high quality, branded content that reaffirms the value of Client’s brand and supports monthly and quarterly sales goals.
2.5.1. Social Posts. iFrog will create 13 organic posts per month, with custom graphics and messaging. Each month, it will create custom cover photos to ensure that Client’s sales message is seen on social media and supports Client’s broader marketing efforts. iFrog will also ensure that profile pics properly represent Client’s brand and are properly sized.
2.5.2. Social Listening. iFrog will monitor Facebook, Instagram and Twitter for references to Client’s brand or other key terms associated with Client’s brand in new feeds and other areas outside of reviews and referrals, which are covered separately in Reputation Management. iFrog will report negative references to Client’s brand and will leave appropriate responses to brand references on behalf of Client.
2.5.3. Management. iFrog will update Client’s Facebook story as need and keep Client’s hours of service current and About Us section updated.
2.5.4. Reputation Management. Reputation management is an optional Service. On any platform where Client receives reviews and to which Client has access, iFrog will respond to all known reviews on behalf of Client. iFrog will create one landing page to solicit reviews and one landing page to showcase testimonials. It will also create one email template to use in Client’s CRM to solicit reviews after a sale or service appointment.
2.5.5. YouTube Optimization. YouTube Optimization is an optional service. iFrog will complete and maintain Client’s profile on YouTube, create playlists, ad fifteen (15) videos per month to the channel, ad SEO-enhanced meta descriptions to videos and tag videos for optimization. Client provides the videos.
2.5.6. Value Proposition & Brand Enhancement. The Value Proposition & Brand Enhancement package is optional. It is also intended to be a one-time purchase. iFrog will have a specialist interview key people at the dealership and obtain a deep understanding of what makes it unique, its history and its connection to the community. iFrog will make suggestions on content and creative options for how best to present Client’s brand, history and overall value proposition. After iFrog and Client are in agreement, iFrog will build a highly customized value proposition page for Client’s website. If needed, this work could also include supporting pages for sales and service. iFrog would also propose and create branding assets to reinforce the value proposition throughout Client’s marketing. iFrog, if requested, could also rework existing marks and logos. iFrog will provide Client with a style guide for future reference.
Article 3. Onboarding
3.1. Go-Live Date. The “Go-Live Date” is the day that any Service subscribed to is scheduled to begin.
3.2. Establishment of Go-Live Date. iFrog will begin the onboarding process by confirming (if set at the time of subscription) or establishing (if not set) or adjusting (if onboarding cannot be completed in the time allotted) a Go-Live Date.
3.3. Gathering Data, Credentials & Permissions. Prior to the Go-Live Date, iFrog will provide Client with a questionnaire and conduct an onboarding interview. In order for iFrog to meet the Go-Live Date, it will need access to various platforms, websites, applications and/or third-party vendors. It will also need detailed information about Client’s market and prior marketing efforts. It may also need access to Client’s marks and other marketing assets. During the onboarding period, iFrog and Client will work cooperatively to ensure that iFrog obtains everything it needs to meet the Go-Live Date. Subject to Client providing iFrog with the information it needs to begin work, iFrog will make reasonable efforts to meet the Go-Live Date.
3.4. Initial Payment. During onboarding and prior to the Go-Live Date, Client shall make arrangements for payment of its initial invoice. Paid media campaigns cannot begin until the initial invoice is paid. During onboarding, Client and iFrog will establish the payment method (credit card, electronic funds transfer or check) Client will use to pay its invoice going forward. (See Article 8.)
Article 4. Client’s Service Level Obligations
4.1. Identification of Client Representatives. Client shall designate a representative who has authority to approve Deliverables, Ad Spends and other matters related to the provision of Services under subscription. The representative shall be available to answer questions in a timely manner to ensure that iFrog has sufficient time to complete its work in advance of deadlines. Client shall also designate a representative to receive invoices and handle accounts payable
4.2. Cooperate and Provide Access. Client shall cooperate with iFrog in all matters relating to the provision of Services and provide the appropriate level of access to Client‘s platforms, websites, accounts, applications, CRM and third-party vendors as iFrog may reasonably request to provide Services under subscription.
4.3. Provide Timely Response. Client shall respond promptly to any iFrog request to provide direction, information, approval, authorization, or decisions that are reasonably necessary for iFrog to perform Services under subscription.
4.6. Client’s Acts or Omissions. If iFrog’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, iFrog shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client.
Article 5. Permissions
5.1. Use of Client’s Marks. While this Agreement is in effect, Client grants iFrog permission to use Client’s marks, logos and other branded assets, which may be proprietary, to effectuate the Services subscribed to hereunder. Client shall provide iFrog with any brand standards or brand guidelines applicable to its marks or branded assets. Client shall retain all of its intellectual property rights in any branded assets that it provides iFrog for use hereunder.
5.2. Tracking Devices on Website & Sharing Consumer Data. Depending on the Services under subscription, Client understands that iFrog may need administrative access to the website contracted to receive marketing services. Client also understands that iFrog may need to use this access to place pixels, cookies, web beacons, tags or a tag management system (such as Google Tag Manager) or other tracking technologies on Client’s website. These technologies allow Consumer Data to be shared with advertising networks and platforms (such as Google Display Network or Facebook) and allow analytics platforms (such as Google Analytics) to assess consumer behavior on the site. (Some laws consider sharing Consumer Data with ad networks and platforms to constitute the “sale” of data.) The reason data is shared with ad networks and platforms is to remarket consumers who have been on Client’s website, to build audiences and to engage in other advertising activity that uses Consumer Data. While this Agreement is in effect, Client grants iFrog permission to access any website contracted to receive marketing services, to place tracking technology on the site and to collect, use, share and sell (to the degree that sharing Consumer Data with an advertising network or platform constitutes a “sale”) Consumer Data as needed to provide the Services under subscription. Client may revoke or modify this permission at any time, but such revocation or modification must be done by a writing signed by both parties. (“Consumer Data” means data that can be used to identify an individual or household either directly by name, address, phone number, email address or other similar means or indirectly by a unique identifier used to track consumers anonymously online.) (Linking to other webpages in this paragraph is done solely to provide the reader with a better understanding of the words or phrases used to describe the online marketing ecosystem, and the pages linked to are not incorporated into this Agreement thereby.)
5.3. Third-Party Affiliates. Some or all of the Services provided under this Agreement incorporate or use the technology, platforms, programs, applications or data of companies, contractors, licensors or other entities (“Third-Party Affiliates”). Client agrees that iFrog may designate such work to be done by and share such Customer Data and Confidential Information with its Third-Party Affiliates as iFrog determines is necessary to carry out its obligations under this Agreement.
5.5. iFrog View in Google Analytics. Client grants iFrog permission to use filters in Google Analytics to create an iFrog “view,” which reflects the proprietary, analytical framework iFrog uses to assess goals, conversions, and overall performance. Client also grants iFrog permission upon termination of Services to remove any view iFrog created in Google Analytics. If Client does not have a Google Analytics, Client gives iFrog permission to create a Google Analytics account for Client, and Client also gives iFrog permission to delete the Google Analytics account iFrog created if Client has not taken over the account within thirty (30) days after termination of Services.
Article 6. Change in Services
6.1. Client Adding Services. If Client wishes to add Services, Client may do so by entering into a separate, new or amended Subscription Agreement with iFrog that reflects the addition of the new Services. iFrog will not provide new Services until they are reflected in a separate, new or amended and fully executed Subscription Agreement.
6.2. Client Canceling Some Services. If Client wishes to cancel some but not all Services or exchange one Service for another, Client must make this request in writing to iFrog and iFrog will respond to Client’s request promptly. If iFrog and Client agree to a change of Services, Client must enter into a new Service Agreement with iFrog reflecting the change. No change in Services shall be effective until a new Service Agreement has been fully executed.
6.3. Change in Services by iFrog. Because iFrog is constantly innovating and because the ecosystem of digital marketing is dynamic, Client understands and agrees that iFrog may, from time to time, at its sole discretion, with or without prior notice to Client, change the Services. Changes may include adjustments or modifications to improve performance, obtain a better return on investment, adapt to shifts in marketing practices, technologies or other external factors and/or make corrections.
6.4. Notice of Material Change. Notwithstanding the above, should iFrog make a material change, as determined solely by iFrog, in the Services, iFrog will inform Client of the changes.
Article 7. Termination of Services
7.1. Termination. Either party may terminate their obligations under the Subscription Agreement by providing 60-day’s written notice. The 60-day notice period will start to run on the first day of the new month after written notice is given. Notice given on the 20th of the month, for example, will result in termination of the Subscription Agreement 60 days after the first of the new month. Notice given on the first of the month will start the 60–day notice period immediately.
7.2. Suspension of Services & Termination. Suspension of services does not constitute a termination of Services.
7.3. Cause for Immediate Termination. Notwithstanding the above, iFrog may terminate this Agreement immediately upon written notice to Client, if Client: (1) fails to pay any amount when due under this Agreement and such failure continues for sixty (60) days or (2) becomes insolvent files a petition for bankruptcy or commences or has commenced against it proceedings relating to (60) days or (2) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
Article 8. Payment, Late Payment, Suspension of Services & Taxes
8.1. Covenant to Pay. Client agrees to pay all fees identified in the Subscription Agreement plus costs and expenses associated with the Services under subscription and to do so in accordance with these Terms.
8.2. Ad Spend & Paid Media Management Fee. The term “Ad Spend” refers to monies paid or budgeted to be paid to Third Party Advertisers to run display ads, videos, search engine marketing and other forms of paid media on properties or platforms they own or control. The term Paid Media Management Fee is that percentage of the Ad Spend (or the fixed fee paid in the event that Client’s minimum Ad Spend drops below $4,750) paid by Client to iFrog as a fee to plan, purchase, create, place, manage, and optimize paid media purchases. Ad Spend is an expense. Paid Media Management Fee is a fee.
8.3. Initial Invoice & Payment. iFrog will send the initial invoice as soon as possible after Client has signed the Subscription Agreement, which typically requires Client and iFrog to first determine the amount of Client’s Ad Spend for the period being invoiced. The initial payment will typically consist of set-up fees identified in the Subscription Agreement, Ad Spend for the period covered by the initial invoice, and any management or agency fees, pro–rated if necessary, for the period covered by the initial invoice. Client shall make its initial payment in advance of the Go-Live Date. (Also see paragraph 3.4.)
8.4. Monthly Invoicing & Payments. After the initial invoice, iFrog will invoice Client on or before the 10th of the month. iFrog will send invoices by email to a representative Client designates to handle accounts payable. All invoices are due upon receipt. For Clients subscribed to L.E.A.P., payment upon receipt is a material term to this Agreement because, after the initial invoice and payment, iFrog will be advancing Client’s Ad Spend each month until Client has paid its invoice.
8.5. Suspension of Services. For Clients subscribed to L.E.A.P., iFrog may suspend all paid media advertising in the event iFrog has not received payment within fourteen (14) days after emailing an invoice. iFrog will determine whether to suspend paid media advertising on a case-by-case basis and take into consideration a variety of factors such as the amount of Ad Spend, the length of time Client has been with iFrog, communications between iFrog and Client regarding the unpaid invoice and any other factors iFrog considers material in assessing the risk of nonpayment on a particular occasion. Any decision by iFrog not to suspend paid media advertising, whether on a single occasion or as a course of dealing, shall not constitute a waiver of its right to do so on a particular occasion; nor shall it provide Client with grounds for relying on a continuation of non-suspension as a course of dealing. iFrog has the right to strictly enforce this contractual term at any time. For subscriptions other than L.E.A.P., iFrog may suspend Services in the event iFrog has not received payment within forty-five (45) days after emailing the unpaid invoice.
8.6. Interest. Client shall pay interest at the rate of 1.5% per month, calculated daily and compounded monthly, for all invoiced amounts thirty (30) days in arrears.
8.7. Collections. Client shall pay interest at the rate of 2% per month, calculated daily and compounded monthly, for all amounts owed and sent to collections; the increase from 1.5% to 2% shall occur on the date the receivable is assigned to counsel and/or collections. Client will be surcharged an additional 20% of the amount owed, not including compounded interest, at the time the matter is referred to counsel and/or collections. Client shall reimburse iFrog for all fees and costs incurred in collecting any late payments, including, without limitation, fees and costs charged by any collection agency and/or attorney.
8.8. No Waiver Implied. Any decision by iFrog not to charge and collect interest on a late payment, or to suspend services, or to delay charging interest or suspending services, or to offer to compromise a contractual right to settle an amount owed, shall not be deemed a waiver of its rights hereunder. Any offer by iFrog to settle an unpaid invoice for less than the invoiced amount shall be considered an offer contingent upon payment; if payment is not forthcoming and/or the matter is referred to collections, the offer is deemed revoked and this Agreement, including paragraphs 8.6 and 8.6, and the record of invoices and payments dictate the amount owed.
8.9. Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
Article 9. Mutual Confidentiality Agreement
9.1 Confidential Information. During the performance of this Agreement, given the nature of the Services under contract, the parties anticipate that both Client and iFrog (as the “Disclosing Party”) will disclose or make available to the other party (as the “Receiving Party”) confidential and proprietary information. Anticipated disclosures include information pertaining to marketing strategies and solutions; business affairs operations processes methodologies and contracts; solutions; business affairs, operations, processes, methodologies and contracts; products; services; intellectual property; trade secrets; third-party confidential information; technology infrastructure(s); methods or processes by which a product or service is provided; and other sensitive or proprietary information. Taken together, this confidential and proprietary information is referred to collectively as “Confidential Information.” Anticipated disclosures could occur orally or in written, electronic, or other form or media, and could involve communications that are not designated or otherwise identified as “confidential.”
9.2. Exclusions. Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this section by the Receiving Party or any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.
9.3. Obligations and Duties. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose Confidential Information to any person or entity other than Receiving Party’s employees, representatives or Third-Party Affiliates who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
9.4. Receiving Party Responsible for its Representatives. The Receiving Party shall be responsible for any breach of this section caused by any of its employees, representatives or Third-Party Affiliates.
9.5 Return or Destroy. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
9.5 Remedies. Client and iFrog agree that the rights and benefits of each of the parties to this Mutual Confidentiality Agreement are unique and that no adequate remedy exists at law if either party shall fail to perform or breaches any of its obligations or duties hereunder, that it would be difficult to determine the amount of damages resulting therefrom and that such breach would cause irreparable injury to the non-breaching party. Therefore, the non-breaching party shall be entitled to injunctive relieve to prevent or restrain any breach of this Mutual Confidentiality Agreement.
9.6. Survival. The obligations and duties under this Mutual Confidentiality Agreement shall survive termination of this Agreement.
9.7 Attorneys’ Fees. If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Mutual Confidentiality Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
Article 10. Warranties
10.1. No Infringement. iFrog warrants that it has the full right, power, and authority (by ownership, license, or otherwise) to use all intellectual property, patents, copyrights, trademarks, or other intellectual property used in performing the Services and embodied in the Deliverables and to grant Client the rights and licenses set forth herein, on the terms and conditions of this Agreement.
10.2. Services and Deliverables are AS-IS. Neither iFrog nor its Third-Party Affiliates warrant that the Services or Deliverables will be provided free of errors; nor do they make any representation or warranty as to the results Client will obtain from use of the Services and Deliverables. Except as stated in paragraph 10.1., all Services and Deliverables are provided AS-IS, without warranties of any kind, express or implied.
10.3. Disclaimer. EXCEPT FOR THE WARRANTY SET FORTH IN PARAGRAPH 10.1., IFROG MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES OR DELIVERABLES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
10.4. Notice. iFrog shall not be liable for a breach of the warranty set forth in paragraph 10.1. unless Client gives written notice of the defective Services or Deliverables reasonably described to iFrog within fifteen (15) days of the time when Client discovers or ought to defective Services or Deliverables, reasonably described, to iFrog within fifteen (15) days of the time when Client discovers or ought to have discovered that the Services or Deliverables were defective. iFrog shall, in its sole discretion, either: cure the defect by obtaining or perfecting the intellectual property right in question, repair or re-perform such Services or Deliverables in such a way as to cure the defect; or credit or refund the price of such Services or Deliverables at a pro rata contract rate.
10.5. SOLE REMEDY. THE REMEDIES SET FORTH IN THIS SHALL BE CLIENT‘S SOLE AND EXCLUSIVE REMEDY AND IFROG‘S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 10.1.
Article 11. Specific Covenants
In addition to covenants set forth elsewhere in these Terms, Client covenants:
11.1. Compliance with Law. Client will comply with all laws applicable to its business operations to the degree they relate to the Services provided under this Agreement.
11.3 Consent. For any Client doing business in a jurisdiction the laws of which require a consumer to be given notice that a business collects, uses, shares or sells Consumer Data and the opportunity to opt out of same, Client will have consent management practices that comply with applicable law, and Client covenants that any Consumer Data iFrog receives directly (e.g., email lists) or indirectly (e.g., automatically from website) from Client will be Consumer Data that Client is permitted to collect, use, share or sell (to the degree that sharing Consumer Data with an advertising network or platform constitutes a “sale”).
11.4. Truth in Advertising. That any information Client provides to iFrog to be used in marketing and advertisements will be truthful, not likely to mislead consumers and comply with federal, state and local standards for truth in advertising and that Client will timely instruct iFrog, in a writing such as an email, to stop running marketing campaigns and advertisements should facts or circumstances change such that continuing to run them would constitute a violation of these standards.
In addition to covenants set forth elsewhere in these Terms, iFrog covenants:
11.5. Follow Client’s Instructions. iFrog will not collect, use, share or sell Consumer Data obtained in the course of providing Services to Client except as permitted by this Agreement and will follow any written instructions provided by Client to stop running marketing campaigns and advertisements provided pursuant to paragraph 11.4.
Article 12. Indemnity
12.1. Mutual Indemnification. Subject to Paragraph 12.2. (Exceptions) and 12.3. (Notice of Third-Party Claim), each party (as “Indemnifying Party”) shall indemnify, hold harmless, and defend the other party and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys’ fees, that are incurred by Indemnified Party (collectively, “Losses”), arising out of any third-party claim alleging or related to:
12.1.1. breach, material or otherwise, of Client’s obligations under paragraphs 11.1., 11.2., 11.3. and 11.4;
12.1.2. any reckless or willful act, omission or misconduct of Indemnifying Party in connection with the performance of its obligations under this Agreement; or
12.1.3. without limiting the scope of the indemnity obligations in Paragraph 12.1.1., which are understood be separate and independent from the following, any failure of Indemnifying Party to materially comply with applicable federal, state or local laws, in the performance of its obligations under this Agreement.
12.2. Exceptions. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify, hold harmless, or defend Indemnified Party against any claim (whether direct or indirect) if such claim or corresponding Losses arise out of or result from Indemnified Party’s:
12.2.1. bad faith failure to materially comply with any of its obligations in this Agreement; or
12.2.2. use or performance of Services in a manner not authorized under this Agreement.
12.3. Notice of Third-Party Claims. Indemnified Party shall give Indemnifying Party prompt written notice of any Losses on which Indemnified Party intends to base or is basing a request for indemnification. Each such notice must contain (i) a description of the third- party claim, (ii) a description of the nature and amount of the related Losses and (iii) a statement containing all facts supporting Indemnified Party’s contention that it is entitled to indemnity, such that, taken together, Indemnifying Party can reasonably assess its obligations to Indemnified Party under this Article. Indemnified Party shall also furnish to Indemnifying Party copies of all papers, documents and electronic communications received from the third party related in any way to the claim for indemnity. Indemnifying Party has no duty to indemnify, hold harmless and defend Indemnified Party until it has fulfilled its obligations under this paragraph. Indemnified Party’s failure to fulfill its obligations under this paragraph does not relieve Indemnifying Party of any liability that Indemnifying Party may have to Indemnified Party except as follows: (i) in no event shall Indemnifying Party be liable for any Losses that result from Indemnified Party’s delay in fulfilling its obligations under this paragraph and (ii) no obligation to defend or hold Indemnified Party harmless from defense costs arises until it has fulfilled its obligations under this paragraph and Indemnifying Party has had thirty (30) days to assess its obligations under this Article. Once the obligations under this paragraph are met and the thirty (30) day period of assessment has elapsed, Indemnifying Party’s duty to defend applies immediately, regardless of whether Indemnified Party has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.
12.4. Reimbursement of Defense Costs. Indemnifying Party shall reimburse Indemnified Party promptly and periodically for reasonable costs properly incurred in and allocated to the indemnified claim, including reasonable attorneys’ fees and expenses, which shall be supported by itemized invoices from counsel defending the indemnified claim.
12.5. Sole Remedy. EXCEPT FOR THE OBLIGATIONS IN PARAGRAPHS 11.1., 11.2., 11.3. and 11.4., THIS ARTICLE SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF THE INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR THE INDEMNIFIED PARTY FOR ANY DAMAGES COVERED UNDER THIS ARTICLE.
Article 13. Limitation of Liability
13.1. NO CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES, ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
13.2. MAXIMUM LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE, WHETHER PASSIVE OR ACTIVE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY CLIENT TO IFROG IN FEES, WHICH BY DEFINITION EXCLUDES EXPENSES SUCH AS AD SPENDS, PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13.3. EXCEPTIONS. THE LIMITATIONS SET FORTH IN PARAGRAPH 13.2 SHALL NOT APPLY TO:
13.3.1 DAMAGES OR LIABILITIES ARISING FROM A BREACH, MATERIAL OR OTHERWISE, OF CLIENT’S OBLIGATIONS UNDER PARAGRAPHS 11.1., 11.2., 11.3., AND 11.4.
13.3.2. DAMAGES OR LIABILITIES ARISING FROM THIRD-PARTY CLAIMS SUBJECT TO INDEMNITY UNDER ARTICLE 12.
13.3.3. AMOUNTS OWED UNDER THIS AGREEMENT.
13.3.4. A PARTY’S OBLIGATION TO PAY ATTORNEYS’ FEES AND COURT COSTS.
13.4. IF REMEDY FAILS OF ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS ARTICLE SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
13.5. Materiality of This Article. Each party acknowledges and agrees that the parties entered into the Agreement in reliance upon the Limitations of Liability set forth in this Article, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
13.6. Waiver of California Civil Code §1542. For any litigated matter subject to the laws the State of California, the parties waive the provisions of Civil Code section1542, which reads: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
13.7. CONTRACTUAL PERIOD OF LIMITATIONS. NO ACTION MAY BE BROUGHT AGAINST IFROG FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT UNLESS THE ACTION IS COMMENCED WITHIN ONE (1) YEAR OF THE DATE THE PARTY SEEKING TO RECOVER FIRST SUSTAINED ACTIONABLE LOSS, INJURY OR DAMAGE. THIS CONTRACTUAL PERIOD OF LIMITATION SHALL NOT BE EXTENDED BECAUSE THE PARTY SEEKING TO RECOVER LACKED KNOWLEDGE OF THE LOSS, INJURY OR DAMAGE OR THAT SAME WERE ACTIONABLE.
Article 14. License
14.1. Grant of License & Reservation. iFrog grants Client a worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, irrevocable license to reproduce and display, on all media now known or hereafter devised, any Deliverable iFrog produces for Client pursuant to a Subscription Agreement. The license is granted only to Client and not to an affiliate, including other stores within a group or a parent or management company. iFrog reserves all rights other than those granted herein. Either Client or iFrog may bring legal action against a third-party that infringes the rights granted to Client. iFrog reserves the right to include Deliverables, or derivations thereof, it produced for Client in a published portfolio of its work for its own marketing purposes.
14.2. “Deliverables” refers to work created by iFrog and fixed in a tangible medium of expression and includes but is not limited to graphics, videos, written content, web pages and emails.
Article 15. General Provisions
15.1. No Implied Waiver. No waiver by iFrog of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by iFrog. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.2 Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to iFrog hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within seven (7) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 17, either party may thereafter terminate this Agreement upon five (5) days’ written notice.
15.3. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of iFrog. Any purported assignment or delegation in violation of this paragraph is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
15.4. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.5. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
15.6. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Maryland without giving effect to any choice or conflict of law provision or rule (whether of the State of Maryland or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Maryland.
15.7. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Maryland in each case located in the City of Easton and County of Talbot, for state court actions, and City of Salisbury and County of Wicomico for federal court actions, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
15.12. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, “Notice”) shall be in writing. Notice may be provided by email and, for Client, addressed to the iFrog employee who routinely services its account or Kyle McCracken, the company’s CEO, at email@example.com and, for iFrog, to the Client representative(s) designated by Client.
15.13. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15.14. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Warranties, Indemnity, Limitations of Liability, Relationship of the Parties, Governing Law, Submission to Jurisdiction, Notices, Severability and Survival.
15.15. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.