Terms and Conditions

Last revised January 6, 2022

 

The following Standard Terms and Conditions apply to the Master Services Agreement between REV77, LLC (“REV77”) and You, the customer (“Customer”) (REV77 and Customer may be referred to individually as a "Party," and collectively as the "Parties").

REV77 reserves the right to change its Terms and Conditions at any time in its sole and absolute discretion. Customer agrees to and shall be bound by the version of Terms and Conditions posted on REV77’s website at the time Customer enters into its initial Insertion Order.


1.      Review and Approval of Deliverables. Customer will have the right to review certain (but not all) Deliverables developed by REV77. REV77 will inform Customer at the time of entering into an Insertion Order if the applicable Deliverables may be reviewed prior to launch. For any Deliverables for which REV77 informs Customer that Customer will have the right to review, Customer will have four (4) business days from receipt of such Deliverable to review and approve the Deliverable to confirm that the Deliverable conforms to the terms of the Insertion Order or any other written specifications agreed upon by both Parties prior to commencement of the work. If the Customer has any objections, Customer shall notify REV77 in writing (email to suffice) of Customer's rejection of the Deliverable within such four (4) business day period. If Customer fails to reject the Deliverables within the four (4) business day review period, the Deliverables will be deemed accepted. If Customer does reject any Deliverables, such rejection will describe, in reasonable detail, the basis for such rejection. Customer only will be entitled to two (2) rounds of revisions for any Deliverables that are eligible for review as described above. If Customer requests additional revisions after the first round, such revisions will be made at Customer's sole cost and may result in delays in the timeline for the Services.


2.     Ownership Rights.


2.1.  Customer Content; License. During the Term, Customer may provide certain Customer Content to REV77 for use in performance of the Services. For purposes of this Agreement, "Customer Content" means any text, keywords, audio, video, photos, graphics, images, or other content provided by Customer for use hereunder. Customer hereby grants REV77 and its designees a non-exclusive, irrevocable (during the Term) worldwide, transferable, sub-licensable right and license to (a) use, reproduce, mirror, distribute, modify, perform and display the Customer Content (or any portion thereof) in connection with providing the Services; (b) use Customer's name and logo in connection with providing the Services; (c) distribute the Deliverables and Customer Content to the REV77 Distribution Network (as defined in Exhibit A); and (d) list, represent, register, or establish accounts or keywords in connection with providing the Services. 


2.2.  Deliverables; Restrictions. Except for any code included as part of any custom website developed by REV77 hereunder, which will be the property of Customer upon Customer's payment in full for all Services pertaining to the development of such website, all Deliverables will at all times remain the property of REV77. REV77 hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use and publicly display the Deliverables on Customer's own digital properties (including social media services) during the Term. Customer may not, without REV77's prior written approval in each instance, (i) authorize the reproduction or use of any Deliverables in any medium, (ii) use the Deliverables in any format other than the format provided by REV77; or (iii) alter or modify any Deliverables.


2.3.  Logos and Trademarks. REV77 acknowledges and agrees that Customer may make certain names, logos, trademarks and service marks of Customer, its clients, subsidiaries and/or affiliates (collectively, "Customer Marks") available to REV77 for use in connection with the Services. REV77 agrees that it will not use the Customer Marks for any purpose other than in connection with providing the Services, except that Customer hereby agrees that REV77 may use, copy and publish the Customer Marks any other information or materials provided to REV77 by Customer or developed or obtained by REV77 in the performance of Services hereunder (including, without limitation, REV77's campaign data and resources), for purposes of marketing and promotion of REV77 businesses in any media, as well as for purposes of training REV77 personnel regarding the Services.


3.    Billing/Payment.


3.1.  Payment. REV77 accepts payment by EFT, check, and credit card. Payments made by credit card will be charged an additional 3.5% processing fee for which Customer is solely responsible. For each Service, Customer's first month's Fees will be billed to the Customer's Account Payable or bank account within two (2) business days after this Agreement is signed. Fees for the second month for each Service will be billed thirty (30) days after the commencement of such Service under this Agreement, and Fees for subsequent months will be billed every thirty (30) days thereafter for the duration of the Term. For Hosting Services, REV77 accepts payment by Credit Card without the additional 3.5% processing fee. For each month, a recurring billing will be enabled after a credit card authorization form has been signed by the Customer. REV77, in its discretion, may also require that Customer provide its credit card information to REV77 to be used to facilitate direct billing of paid media to platforms such as Facebook, Bing, and Facebook/Instagram.


3.2.  No Refunds. Customer is solely responsible for payment of all Fees in each Insertion Order signed by or on behalf of Customer. Customer will be obligated to pay the full amount owed for the Services even if REV77's provision of the Services does not meet Customer's expectations. Amounts paid by Customer under this Agreement are not refundable under any circumstances, and, for avoidance of doubt, any management fees payable hereunder will be deemed earned when billed.


3.3.  Late Payment. If any amount is not paid by Customer when due, such amount shall bear interest at the rate of twelve percent (12%) per annum or the maximum amount permitted by law (whichever is lower), computed from the original due date until paid. In addition to any other remedies that may be available under these Terms and Conditions or the law, if any payment for paid media (including, but not limited to social advertising, searching advertising, programmatic display ads, and/or YouTube ads) is not received on or before its due date, REV77 reserves the right to immediately suspend performance of any agreed-upon Services until payment, including any late fees and/or accrued interest, is made. If any payment for management fees is not made within ten (10) business days, REV77 reserves the right to suspend performance of any agreed-upon Services until payment, including any late fees and/or accrued interest, is made.


3.4.  Any claims by Customer for a credit related to rates incorrectly invoiced or paid must be submitted in writing to REV77 within ninety (90) days of the invoice date or the claim will be waived. In the event Customer is entitled to a credit due to overpayment of an invoice, Customer must use the credit within ninety (90) days of the end of Term or the credit will be forfeited. No cash refunds shall be provided for any credit earned by the Customer. All credits earned shall be for the benefit of Customer and not any third party.


4.    Term; Termination.


4.1.  Term. The term of this Agreement will commence as of the Effective Date of the Parties’ first Insertion Order will remain in effect for the duration of the term set forth in the parties’ Insertion Order(s) unless and until terminated by either Party as permitted herein ("Term").


4.2.  Minimum Term; Termination. Without limiting Section 5.1, Customer acknowledges and agrees to the contract term outlined in Insertion Order (the "Minimum Term").


4.3.  Effects of Termination. Upon expiration or termination of this Agreement or any Insertion Order, (i) REV77 will have the right to immediately cease providing all Services to Customer under the applicable Insertion Order(s), provided that upon any termination by Customer, REV77 will continue to perform all applicable Services for Customer during the Termination Notice Period unless otherwise requested by Customer, (ii) Customer's right to use the Services will immediately terminate, and (iii) all unpaid Fees outstanding from Customer for Services performed prior to the date of termination (including, to the extent applicable, Services performed during the Termination Notice Period) will become immediately due and payable. This Section 4.3, and Sections 2, 3, 5, 6, 7, 8, 9, 11, and 12 will survive any expiration or termination of this Agreement.


5.    Representations and Warranties.


5.1.  Customer Representations. Customer represents and warrants that (i) it has the full right, power and authority to enter this Agreement and grant the licenses and related rights granted herein and has acquired any and all third party clearances, permissions and licenses that are necessary for REV77 to use the Customer Content and/or Customer Marks in connection with REV77’s exercise of its rights and performance of its obligations hereunder; (ii) the Customer Content all times (a) will be true, accurate and complete, (b) will comply with applicable laws and regulations, and (c) will not be misleading, defamatory, libelous or slanderous; (iii) the Customer Content and REV77's use thereof in accordance with this Agreement will not infringe upon or violate the rights or property interests of any third party; (iv) Customer will comply with all applicable laws and regulations in using the Services hereunder. Customer will notify REV77 in writing promptly if any of the foregoing representations and warranties becomes untrue; (v) the Customer Content does not contain viruses or any other contaminants, or disabling devices including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, damage or disable the network or software of REV77, its Affiliates, their respective customers or any third party; (vi) Customer will maintain on its website(s) for which the Services hereunder are provided a privacy statement that complies with applicable laws and industry guidelines, and Customer's privacy and data practices associated with its use of the Services under this Agreement will be transparently and accurately disclosed in such privacy statement; (vii) the execution, delivery, and performance of this Agreement and/or Insertion Order by Customer will not result in any breach of or default of any provision of any agreement, instrument, judgment, decree, order, statute, rule of governmental regulation to which Customer is a party, by which Customer is bound, or which applies to Customer’s obligations under this Agreement.


5.2.  Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, INTERFERENCE WITH ENJOYMENT, NON-INFRINGEMENT, OR OTHERWISE. THE SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND REV77 MAKES NO WARRANTY THAT THE SERVICES (I) WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN CONNECTION WITH ANY PARTICULAR SOFTWARE, OR THAT ANY ERRORS WILL BE CORRECTED; (II) WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (III) WILL PRODUCE ACCURATE, RELIABLE OR SPECIFIC RESULTS (INCLUDING, WITHOUT LIMITATION, THE NUMBER OF IMPRESSIONS, CLICK-THROUGHS, OR LEADS AND ANY PROMOTIONAL EFFECT OR RETURN ON INVESTMENT THEREOF); OR (IV) WILL BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE. REV77, ITS SERVICE PROVIDERS AND ANY VENDORS SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY CUSTOMER CONTENT OR OTHER MATERIALS DISPLAYED ON CUSTOMER'S WEBSITE(S) OR THE FAILURE TO DISPLAY ANY SUCH MATERIALS ON REV77'S OR CUSTOMER'S WEBSITE(S). REV77 WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY CUSTOMER RELATING TO THE UNAVAILABILITY OF THE INTERNET OR WEBSITE(S) IN WHICH CUSTOMER'S ADVERTISEMENTS ARE PUBLISHED OR DELIVERABLES ARE DISPLAYED.


6.    Indemnification.


6.1.  Indemnification by REV77. REV77 shall indemnify, defend and hold harmless Customer, its successors and assigns, and all of their respective officers, directors, employees and agents from and against any and all Claims, and any and all Losses resulting from such Claims, that arise (i) in connection with a claim that the technology through which REV77 provides the Services infringes the intellectual property rights of any third party or (ii) from REV77's gross negligence or willful misconduct in the performance of the Services hereunder.


6.2.  Indemnification by Customer. Customer shall indemnify, defend and hold harmless REV77, its affiliates, successors and assigns, and all of their respective officers, directors, members, employees and agents ("REV77 Indemnitees") from and against any and all claims, actions, suits, demands, obligations, and proceedings of any kind threatened, asserted, or filed against the REV77 Indemnitees by any third party (collectively, "Claims"), and any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees, witness fees, and court costs) (collectively, "Losses") resulting from such Claims that arise in connection with (i) the Customer Content or any materials provided by Customer, including, without limitation, allegations that any of the foregoing are libelous or defamatory or violate or infringe the rights of any third party, including any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights, or any rights of privacy or publicity; (ii) allegations that Customer's business operations, products and/or services violate any federal or state laws, rules or regulations; (iii) the accuracy and legal propriety of information furnished by Customer concerning its organization, products, promotions or services or its competitors' products and services; (iv) Customer's violation of its published privacy statement(s); (v) product liability claims arising out of the use of any of Customer's products or services; or (vi) any breach or alleged breach by Customer of its representations, warranties, or obligations under this Agreement.


6.3.  Call Recording Service. To the extent Customer uses REV77's Call Recording service (as defined in Exhibit A), Customer shall defend, indemnify, and hold harmless REV77 Indemnitees from any and all Claims, and any Losses resulting from such Claims, that arise in connection with Customer's use or misuse of the Call Recording service.


6.4.  HIPAA Compliance. If Customer is a "Covered Entity" as defined by and under The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), and in the absence of any Business Associate Agreement that may be separately entered into between the Parties, Customer waives any claims it may have against REV77 arising out of or in connection with HIPAA requirements and agrees to indemnify, defend, and hold harmless the REV77 Indemnitees against any and all Claims, and Losses resulting from such Claims, that are related to or arise from failure to comply with any HIPAA requirements in connection with the Services.


6.5.  Notice and Participation. The Party seeking indemnification hereunder ("Indemnified Party") shall promptly inform the other Party ("Indemnifying Party") of any suit or proceeding filed against the Indemnified Party for which the Indemnified Party is entitled to indemnification hereunder (provided, however, that failure to give prompt notice will not relieve the Indemnifying Party of any liability hereunder, except to the extent the Indemnifying Party has suffered actual material prejudice by such failure). The Indemnified Party will allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party's choosing, and will provide the Indemnifying Party, at the Indemnifying Party's expense, with information and assistance that are reasonably necessary for the defense and settlement of the claim. The Indemnified Party shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. An Indemnifying Party will not settle any such action without the written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed).


7.    Limitation of Liability. IN NO EVENT SHALL REV77 OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOSS OF DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, REV77 AND ITS AFFILIATES' LIABILITY ARISING OUT OF THIS AGREEMENT (INCLUDING ANY INSERTION ORDERS) WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO REV77 HEREUNDER WITH RESPECT TO THE SERVICE(S) OUT OF WHICH THE CLAIM ARISES DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.


8.    Confidentiality.


8.1.  Definitions. For purposes of this Agreement, the term “Confidential Information” as used in this Agreement means any non-public information relating in any way to either party’s business that is not a Trade Secret and includes, but is not limited to, any information and discussions relating to the parties’ respective projects, products and services, the party’s own clients, or relating to either of the party’s past, present, or future research, development, personnel, business activities and proprietary products. The parties understand and acknowledge that the other considers to be confidential, information which is not generally known outside the party or which the party has received from others under an obligation of confidentiality. Confidential Information also includes, but is not limited to: all ideas, concepts, inventions, improvements, and new product concepts or concepts for improvements to existing products, all pending patent applications, and all computer software developed by or under development by either party. Confidential Information further includes, without limitation, all sketches, drawings, blueprints, product designs, technical information, product concepts, product designs, prototypes, test results, product specifications, business plans and forecasts, marketing plans, budgets, financial forecasts and projections, customer lists and information, suppliers lists and information and all Company financial information, in any format.

The term “Trade Secret” as used in this Agreement has the meaning ascribed to that term under Arizona law and/or the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1839(3).

Notwithstanding the foregoing, Confidential Information and/or Trade Secrets will not include information that: (a) is now or subsequently becomes generally available to the public through no wrongful act of the recipient; (b) the recipient can demonstrate was rightfully in its possession prior to disclosure by the other Party; (c) is independently developed by the recipient without the use of any confidential information provided by the other Party; or (d) recipient rightfully obtained or obtains from a third party who recipient reasonably believed had the right, without obligation to the other Party, to transfer or disclose such information.


8.2.  Restrictions. The Parties agree that, during the Term of this Agreement and for two (2) years thereafter, (i) they will keep all Confidential Information and/or Trade Secrets in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure; (ii) they will not, directly or indirectly, disclose any Confidential Information and/or Trade Secrets to anyone outside of the Parties, except with the prior written consent of the Party supplying the Confidential Information; and (iii) they will not make use of any Confidential Information for their own purposes (except as necessary to perform the Services) or for the benefit of anyone other than the Parties. Each Party will be deemed to have met its obligations hereunder if it treats the other Party's Confidential Information and/or Trade Secrets with the same degree of care as it treats its own sensitive business information of like kind, but in no event less than reasonable care.


8.3.  Permitted Disclosure of Confidential Information. Notwithstanding anything in this Agreement to the contrary, either Party may disclose the Confidential Information of the other Party to its personnel, agents and advisors (including legal and financial advisors) who have a need to know such information in connection with the performance of the Services hereunder and who are obligated to keep such information confidential. Each Party will instruct its personnel and/or agents, as applicable, as to their obligations under this Agreement. Either Party may disclose the Confidential Information if such disclosure is required by law, court or other governmental authority; provided, however, that such Party will notify the other Party in writing in advance of such disclosure, and will provide the other Party with copies of any related information so that the Party may take appropriate action to protect its Confidential Information.


8.4.  Notice of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016. Notwithstanding any other provision of this Agreement:


a)    Neither party will be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:

                        i.        is made:

a.    in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and

b.    solely for the purpose of reporting or investigating a suspected violation of law; or

                      ii.        is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.

b)    If either party files a lawsuit for retaliation by the other for reporting a suspected violation of law, the filing party may disclose the other party’s trade secrets to the filing party’s attorney and use the trade secret information in the court proceeding if the filing party:

                        i.        files any document containing the trade secret under seal; and

                      ii.        does not disclose the trade secret, except pursuant to court order.


9.    Force Majeure. Neither Party will be liable to the other Party for delays and/or defaults in its performance or commitments under this Agreement due to causes beyond its control and without its fault or negligence, including but not limited to acts of God or of the public enemy, fire or explosion, flood, earthquake, actions of the elements, war, riots, embargoes, quarantine, pandemics, strikes, lockouts, disputes with workers or other labor disturbances, or acts or requests of any governmental authority, including without limitation, shelter in place orders, provided that the Party affected by such event will immediately begin or resume performance as soon as practicable after the event has abated.


10. Assignment. Customer may not assign any of its rights and/or obligations hereunder or this Agreement without REV77's prior written consent, which shall not be unreasonably withheld. REV77 may freely assign or transfer this Agreement to (i) any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with REV77, where "control" means the power to direct the management of such entity (an "Affiliate"); (ii) a successor in interest to REV77 or as part of a corporate reorganization, consolidation or merger; or (iii) a purchaser of all or substantially all of such party's assets. For purposes of this Agreement, a change in control shall not constitute an assignment. REV77 also reserves the right to retain independent contractors to perform Services agreed to between the Parties.


11. Governing Law, Venue, and Jury Trial Waiver. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of law provisions. Each Party hereto irrevocably and unconditionally consents to the jurisdiction of the U.S. District Court for the District of Arizona, Phoenix Division, and the Superior Court of Arizona in and for the County of Maricopa, in any action to enforce, interpret, or construe any provision of this Settlement Agreement, and also hereby irrevocably waives any defense of improper venue or forum non convenience to any such action brought in either of those courts. Each party further irrevocably agrees that any action to enforce, interpret or construe any provision of this Agreement will be brought only in either of those courts and not in any other court. If any party to this Agreement shall take any action to enforce this Agreement or bring any action or commence any arbitration for any relief against any other Party, declaratory or otherwise, arising out of this Agreement, the losing Party shall pay to the prevailing Party such Party’s reasonable legal fees and costs incurred in litigating such suit or arbitration and/or enforcing any judgment granted therein. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM OR CROSSCLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THIS AGREEMENT.

12. Miscellaneous. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, it shall not affect the other provisions of this Agreement and such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of the Agreement will remain in full force and effect. This Agreement constitutes the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous communications, understandings and agreements, oral or written, regarding such subject matter. This Agreement may be modified only in a writing signed by both Parties. The waiver or failure of either Party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of the parties set forth in this Agreement are in addition to any rights or remedies the Parties may otherwise have at law or equity. Section headings are for convenience only, and will not be used to interpret this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when taken together, shall constitute one agreement.


Last revised August 24, 2020


The following Standard Terms and Conditions apply to the Master Services Agreement between REV77, LLC (“REV77”) and You, the customer (“Customer”) (REV77 and Customer may be referred to individually as a "Party," and collectively as the "Parties"). 


REV77 reserves the right to change its Terms and Conditions at any time in its sole and absolute discretion. Customer agrees to and shall be bound by the version of Terms and Conditions posted on REV77’s website at the time Customer enters into its initial Insertion Order.


1. Review and Approval of Deliverables. Customer will have the right to review certain (but not all) Deliverables developed by REV77. REV77 will inform Customer at the time of entering into an Insertion Order if the applicable Deliverables may be reviewed prior to launch. For any Deliverables for which REV77 informs Customer that Customer will have the right to review, Customer will have four (4) business days from receipt of such Deliverable to review and approve the Deliverable to confirm that the Deliverable conforms to the terms of the Insertion Order or any other written specifications agreed upon by both Parties prior to commencement of the work. If the Customer has any objections, Customer shall notify REV77 in writing (email to suffice) of Customer's rejection of the Deliverable within such four (4) business day period. If Customer fails to reject the Deliverables within the four (4) business day review period, the Deliverables will be deemed accepted. If Customer does reject any Deliverables, such rejection will describe, in reasonable detail, the basis for such rejection. Customer only will be entitled to two (2) rounds of revisions for any Deliverables that are eligible for review as described above. If Customer requests additional revisions after the first round, such revisions will be made at Customer's sole cost and may result in delays in the timeline for the Services.


2. Ownership Rights. 


2.1. Customer Content; License. During the Term, Customer may provide certain Customer Content to REV77 for use in performance of the Services. For purposes of this Agreement, "Customer Content" means any text, keywords, audio, video, photos, graphics, images, or other content provided by Customer for use hereunder. Customer hereby grants REV77 and its designees a non-exclusive, irrevocable (during the Term) worldwide, transferable, sub-licensable right and license to (a) use, reproduce, mirror, distribute, modify, perform and display the Customer Content (or any portion thereof) in connection with providing the Services; (b) use Customer's name and logo in connection with providing the Services; (c) distribute the Deliverables and Customer Content to the REV77 Distribution Network (as defined in Exhibit A); and (d) list, represent, register, or establish accounts or keywords in connection with providing the Services. 


2.2. Deliverables; Restrictions. Except for any code included as part of any custom website developed by REV77 hereunder, which will be the property of Customer upon Customer's payment in full for all Services pertaining to the development of such website, all Deliverables will at all times remain the property of REV77. REV77 hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use and publicly display the Deliverables on Customer's own digital properties (including social media services) during the Term. Customer may not, without REV77's prior written approval in each instance, (i) authorize the reproduction or use of any Deliverables in any medium, (ii) use the Deliverables in any format other than the format provided by REV77; or (iii) alter or modify any Deliverables. 


2.3. Logos and Trademarks. REV77 acknowledges and agrees that Customer may make certain names, logos, trademarks and service marks of Customer, its clients, subsidiaries and/or affiliates (collectively, "Customer Marks") available to REV77 for use in connection with the Services. REV77 agrees that it will not use the Customer Marks for any purpose other than in connection with providing the Services, except that Customer hereby agrees that REV77 may use, copy and publish the Customer Marks any other information or materials provided to REV77 by Customer or developed or obtained by REV77 in the performance of Services hereunder (including, without limitation, REV77's campaign data and resources), for purposes of marketing and promotion of REV77 businesses in any media, as well as for purposes of training REV77 personnel regarding the Services. 


3. Billing/Payment. 


3.1. Payment. REV77 accepts payment by EFT, check, and credit card. Payments made by credit card will be charged an additional 3.5% processing fee for which Customer is solely responsible. For each Service, Customer's first month's Fees will be billed to the Customer's Account Payable or bank account within two (2) business days after this Agreement is signed. Fees for the second month for each Service will be billed thirty (30) days after the commencement of such Service under this Agreement, and Fees for subsequent months will be billed every thirty (30) days thereafter for the duration of the Term. For Hosting Services, REV77 accepts payment by Credit Card without the additional 3.5% processing fee. For each month, a recurring billing will be enabled after a credit card authorization form has been signed by the Customer. REV77, in its discretion, may also require that Customer provide its credit card information to REV77 to be used to facilitate direct billing of paid media to platforms such as Facebook, Bing, and Facebook/Instagram. 


3.2. No Refunds. Customer is solely responsible for payment of all Fees in each Insertion Order signed by or on behalf of Customer. Customer will be obligated to pay the full amount owed for the Services even if REV77's provision of the Services does not meet Customer's expectations. Amounts paid by Customer under this Agreement are not refundable under any circumstances, and, for avoidance of doubt, any management fees payable hereunder will be deemed earned when billed. 


3.3. Late Payment. If any amount is not paid by Customer when due, such amount shall bear interest at the rate of twelve percent (12%) per annum or the maximum amount permitted by law (whichever is lower), computed from the original due date until paid. In addition to any other remedies that may be available under these Terms and Conditions or the law, if any payment for paid media (including, but not limited to social advertising, searching advertising, programmatic display ads, and/or YouTube ads) is not received on or before its due date, REV77 reserves the right to immediately suspend performance of any agreed-upon Services until payment, including any late fees and/or accrued interest, is made. If any payment for management fees is not made within ten (10) business days, REV77 reserves the right to suspend performance of any agreed-upon Services until payment, including any late fees and/or accrued interest, is made.


3.4. Any claims by Customer for a credit related to rates incorrectly invoiced or paid must be submitted in writing to REV77 within ninety (90) days of the invoice date or the claim will be waived. In the event Customer is entitled to a credit due to overpayment of an invoice, Customer must use the credit within ninety (90) days of the end of Term or the credit will be forfeited. No cash refunds shall be provided for any credit earned by the Customer. All credits earned shall be for the benefit of Customer and not any third party. 


4. Term; Termination. 


4.1. Term. The term of this Agreement will commence as of the Effective Date of the Parties’ first Insertion Order will remain in effect for the duration of the term set forth in the parties’ Insertion Order(s) unless and until terminated by either Party as permitted herein ("Term"). 


4.2. Minimum Term; Termination. Without limiting Section 5.1, Customer acknowledges and agrees that Insertion Orders will have a minimum term of three (3) months from the “Go Live Date” of such Insertion Order (the "Minimum Term"). For purposes of this Agreement, the "Go Live Date" for a given Insertion Order means the first date on which each Service under such Insertion Order is launched in a production environment by REV77 on behalf of Customer. After the expiration of the Minimum Term for an Insertion Order, Customer may terminate this Agreement and/or any then-current Insertion Orders at any time upon written notice to REV77 (email to suffice), provided that (i) any such termination will not take effect until the last day of Customer's next billing period (i.e., the billing period that follows the then-current billing period) ("Termination Notice Period"), (ii) the termination of any Insertion Order will not terminate this Agreement or any other Insertion Order unless expressly stated in the applicable notice of termination or cancellation; and (iii) Customer will pay an Early Termination Fee equal to three (3) months’ of service or the balance for the remaining term of the relevant Insertion Order if less than three (3) months remains in the term. For avoidance of doubt, during the Termination Notice Period REV77 will continue to perform all Services contemplated under the applicable Insertion Orders, and Customer will remain liable for all fees previously incurred plus the Early Termination Fee. REV77 may terminate this Agreement at any time upon written notice to Customer (email to suffice). Any such termination will be effective upon Customer's receipt of REV77's notice. 


4.3. Effects of Termination. Upon expiration or termination of this Agreement or any Insertion Order, (i) REV77 will have the right to immediately cease providing all Services to Customer under the applicable Insertion Order(s), provided that upon any termination by Customer, REV77 will continue to perform all applicable Services for Customer during the Termination Notice Period unless otherwise requested by Customer, (ii) Customer's right to use the Services will immediately terminate, and (iii) all unpaid Fees outstanding from Customer for Services performed prior to the date of termination (including, to the extent applicable, Services performed during the Termination Notice Period) will become immediately due and payable. This Section 4.3, and Sections 2, 3, 5, 6, 7, 8, 9, 11, and 12 will survive any expiration or termination of this Agreement. 


5. Representations and Warranties.


5.1. Customer Representations. Customer represents and warrants that (i) it has the full right, power and authority to enter this Agreement and grant the licenses and related rights granted herein and has acquired any and all third party clearances, permissions and licenses that are necessary for REV77 to use the Customer Content and/or Customer Marks in connection with REV77’s exercise of its rights and performance of its obligations hereunder; (ii) the Customer Content all times (a) will be true, accurate and complete, (b) will comply with applicable laws and regulations, and (c) will not be misleading, defamatory, libelous or slanderous; (iii) the Customer Content and REV77's use thereof in accordance with this Agreement will not infringe upon or violate the rights or property interests of any third party; (iv) Customer will comply with all applicable laws and regulations in using the Services hereunder. Customer will notify REV77 in writing promptly if any of the foregoing representations and warranties becomes untrue; (v) the Customer Content does not contain viruses or any other contaminants, or disabling devices including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, damage or disable the network or software of REV77, its Affiliates, their respective customers or any third party; (vi) Customer will maintain on its website(s) for which the Services hereunder are provided a privacy statement that complies with applicable laws and industry guidelines, and Customer's privacy and data practices associated with its use of the Services under this Agreement will be transparently and accurately disclosed in such privacy statement; (vii) the execution, delivery, and performance of this Agreement and/or Insertion Order by Customer will not result in any breach of or default of any provision of any agreement, instrument, judgment, decree, order, statute, rule of governmental regulation to which Customer is a party, by which Customer is bound, or which applies to Customer’s obligations under this Agreement. 


5.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, INTERFERENCE WITH ENJOYMENT, NON-INFRINGEMENT, OR OTHERWISE. THE SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND REV77 MAKES NO WARRANTY THAT THE SERVICES (I) WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN CONNECTION WITH ANY PARTICULAR SOFTWARE, OR THAT ANY ERRORS WILL BE CORRECTED; (II) WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (III) WILL PRODUCE ACCURATE, RELIABLE OR SPECIFIC RESULTS (INCLUDING, WITHOUT LIMTIATION, THE NUMBER OF IMPRESSIONS, CLICK-THROUGHS, OR LEADS AND ANY PROMOTIONAL EFFECT OR RETURN ON INVESTMENT THEREOF); OR (IV) WILL BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE. REV77, ITS SERVICE PROVIDERS AND ANY VENDORS SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY CUSTOMER CONTENT OR OTHER MATERIALS DISPLAYED ON CUSTOMER'S WEBSITE(S) OR THE FAILURE TO DISPLAY ANY SUCH MATERIALS ON REV77'S OR CUSTOMER'S WEBSITE(S). REV77 WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY CUSTOMER RELATING TO THE UNAVAILABILITY OF THE INTERNET OR WEBSITE(S) IN WHICH CUSTOMER'S ADVERTISEMENTS ARE PUBLISHED OR DELIVERABLES ARE DISPLAYED. 


6. Indemnification. 


6.1. Indemnification by REV77. REV77 shall indemnify, defend and hold harmless Customer, its successors and assigns, and all of their respective officers, directors, employees and agents from and against any and all Claims, and any and all Losses resulting from such Claims, that arise (i) in connection with a claim that the technology through which REV77 provides the Services infringes the intellectual property rights of any third party or (ii) from REV77's gross negligence or willful misconduct in the performance of the Services hereunder. 


6.2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless REV77, its affiliates, successors and assigns, and all of their respective officers, directors, members, employees and agents ("REV77 Indemnitees") from and against any and all claims, actions, suits, demands, obligations, and proceedings of any kind threatened, asserted, or filed against the REV77 Indemnitees by any third party (collectively, "Claims"), and any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees, witness fees, and court costs) (collectively, "Losses") resulting from such Claims that arise in connection with (i) the Customer Content or any materials provided by Customer, including, without limitation, allegations that any of the foregoing are libelous or defamatory or violate or infringe the rights of any third party, including any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights, or any rights of privacy or publicity; (ii) allegations that Customer's business operations, products and/or services violate any federal or state laws, rules or regulations; (iii) the accuracy and legal propriety of information furnished by Customer concerning its organization, products, promotions or services or its competitors' products and services; (iv) Customer's violation of its published privacy statement(s); (v) product liability claims arising out of the use of any of Customer's products or services; or (vi) any breach or alleged breach by Customer of its representations, warranties, or obligations under this Agreement. 


6.3. Call Recording Service. To the extent Customer uses REV77's Call Recording service (as defined in Exhibit A), Customer shall defend, indemnify, and hold harmless REV77 Indemnitees from any and all Claims, and any Losses resulting from such Claims, that arise in connection with Customer's use or misuse of the Call Recording service. 


6.4. HIPAA Compliance. If Customer is a "Covered Entity" as defined by and under The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), and in the absence of any Business Associate Agreement that may be separately entered into between the Parties, Customer waives any claims it may have against REV77 arising out of or in connection with HIPAA requirements and agrees to indemnify, defend, and hold harmless the REV77 Indemnitees against any and all Claims, and Losses resulting from such Claims, that are related to or arise from failure to comply with any HIPAA requirements in connection with the Services. 


6.5. Notice and Participation. The Party seeking indemnification hereunder ("Indemnified Party") shall promptly inform the other Party ("Indemnifying Party") of any suit or proceeding filed against the Indemnified Party for which the Indemnified Party is entitled to indemnification hereunder (provided, however, that failure to give prompt notice will not relieve the Indemnifying Party of any liability hereunder, except to the extent the Indemnifying Party has suffered actual material prejudice by such failure). The Indemnified Party will allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party's choosing, and will provide the Indemnifying Party, at the Indemnifying Party's expense, with information and assistance that are reasonably necessary for the defense and settlement of the claim. The Indemnified Party shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. An Indemnifying Party will not settle any such action without the written consent of the Indemnified Party (which consent will not be unreasonably withheld or delayed). 


7. Limitation of Liability. IN NO EVENT SHALL REV77 OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOSS OF DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, REV77 AND ITS AFFILIATES' LIABILITY ARISING OUT OF THIS AGREEMENT (INCLUDING ANY INSERTION ORDERS) WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO REV77 HEREUNDER WITH RESPECT TO THE SERVICE(S) OUT OF WHICH THE CLAIM ARISES DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 


8. Confidentiality. 


8.1. Definitions. For purposes of this Agreement, the term “Confidential Information” as used in this Agreement means any non-public information relating in any way to either party’s business that is not a Trade Secret and includes, but is not limited to, any information and discussions relating to the parties’ respective projects, products and services, the party’s own clients, or relating to either of the party’s past, present, or future research, development, personnel, business activities and proprietary products. The parties understand and acknowledge that the other considers to be confidential, information which is not generally known outside the party or which the party has received from others under an obligation of confidentiality. Confidential Information also includes, but is not limited to: all ideas, concepts, inventions, improvements, and new product concepts or concepts for improvements to existing products, all pending patent applications, and all computer software developed by or under development by either party. Confidential Information further includes, without limitation, all sketches, drawings, blueprints, product designs, technical information, product concepts, product designs, prototypes, test results, product specifications, business plans and forecasts, marketing plans, budgets, financial forecasts and projections, customer lists and information, suppliers lists and information and all Company financial information, in any format.


The term “Trade Secret” as used in this Agreement has the meaning ascribed to that term under Arizona law and/or the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1839(3).


Notwithstanding the foregoing, Confidential Information and/or Trade Secrets will not include information that: (a) is now or subsequently becomes generally available to the public through no wrongful act of the recipient; (b) the recipient can demonstrate was rightfully in its possession prior to disclosure by the other Party; (c) is independently developed by the recipient without the use of any confidential information provided by the other Party; or (d) recipient rightfully obtained or obtains from a third party who recipient reasonably believed had the right, without obligation to the other Party, to transfer or disclose such information. 


8.2. Restrictions. The Parties agree that, during the Term of this Agreement and for two (2) years thereafter, (i) they will keep all Confidential Information and/or Trade Secrets in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure; (ii) they will not, directly or indirectly, disclose any Confidential Information and/or Trade Secrets to anyone outside of the Parties, except with the prior written consent of the Party supplying the Confidential Information; and (iii) they will not make use of any Confidential Information for their own purposes (except as necessary to perform the Services) or for the benefit of anyone other than the Parties. Each Party will be deemed to have met its obligations hereunder if it treats the other Party's Confidential Information and/or Trade Secrets with the same degree of care as it treats its own sensitive business information of like kind, but in no event less than reasonable care. 


8.3. Permitted Disclosure of Confidential Information. Notwithstanding anything in this Agreement to the contrary, either Party may disclose the Confidential Information of the other Party to its personnel, agents and advisors (including legal and financial advisors) who have a need to know such information in connection with the performance of the Services hereunder and who are obligated to keep such information confidential. Each Party will instruct its personnel and/or agents, as applicable, as to their obligations under this Agreement. Either Party may disclose the Confidential Information if such disclosure is required by law, court or other governmental authority; provided, however, that such Party will notify the other Party in writing in advance of such disclosure, and will provide the other Party with copies of any related information so that the Party may take appropriate action to protect its Confidential Information. 


8.4. Notice of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016. Notwithstanding any other provision of this Agreement:


a) Neither party will be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:

i. is made:

a. in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and

b. solely for the purpose of reporting or investigating a suspected violation of law; or

ii. is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.


b) If either party files a lawsuit for retaliation by the other for reporting a suspected violation of law, the filing party may disclose the other party’s trade secrets to the filing party’s attorney and use the trade secret information in the court proceeding if the filing party:

i. files any document containing the trade secret under seal; and

ii. does not disclose the trade secret, except pursuant to court order.

9. Force Majeure. Neither Party will be liable to the other Party for delays and/or defaults in its performance or commitments under this Agreement due to causes beyond its control and without its fault or negligence, including but not limited to acts of God or of the public enemy, fire or explosion, flood, earthquake, actions of the elements, war, riots, embargoes, quarantine, pandemics, strikes, lockouts, disputes with workers or other labor disturbances, or acts or requests of any governmental authority, including without limitation, shelter in place orders, provided that the Party affected by such event will immediately begin or resume performance as soon as practicable after the event has abated. 


10. Assignment. Customer may not assign any of its rights and/or obligations hereunder or this Agreement without REV77's prior written consent, which shall not be unreasonably withheld. REV77 may freely assign or transfer this Agreement to (i) any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with REV77, where "control" means the power to direct the management of such entity (an "Affiliate"); (ii) a successor in interest to REV77 or as part of a corporate reorganization, consolidation or merger; or (iii) a purchaser of all or substantially all of such party's assets. For purposes of this Agreement, a change in control shall not constitute an assignment. REV77 also reserves the right to retain independent contractors to perform Services agreed to between the Parties.


11. Governing Law, Venue, and Jury Trial Waiver. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of law provisions. Each Party hereto irrevocably and unconditionally consents to the jurisdiction of the U.S. District Court for the District of Arizona, Phoenix Division, and the Superior Court of Arizona in and for the County of Maricopa, in any action to enforce, interpret, or construe any provision of this Settlement Agreement, and also hereby irrevocably waives any defense of improper venue or forum non convenience to any such action brought in either of those courts. Each party further irrevocably agrees that any action to enforce, interpret or construe any provision of this Agreement will be brought only in either of those courts and not in any other court. If any party to this Agreement shall take any action to enforce this Agreement or bring any action or commence any arbitration for any relief against any other Party, declaratory or otherwise, arising out of this Agreement, the losing Party shall pay to the prevailing Party such Party’s reasonable legal fees and costs incurred in litigating such suit or arbitration and/or enforcing any judgment granted therein. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM OR CROSSCLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THIS AGREEMENT. 


12. Miscellaneous. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, it shall not affect the other provisions of this Agreement and such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of the Agreement will remain in full force and effect. This Agreement constitutes the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous communications, understandings and agreements, oral or written, regarding such subject matter. This Agreement may be modified only in a writing signed by both Parties. The waiver or failure of either Party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of the parties set forth in this Agreement are in addition to any rights or remedies the Parties may otherwise have at law or equity. Section headings are for convenience only, and will not be used to interpret this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when taken together, shall constitute one agreement. 


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