Why Unified® (“Why Unified®,” “we,” or “us”) provides a range of marketing products and services for businesses of all sizes (the “Services”). Your Service Agreement (the “Service Agreement”), Service Order (the “Service Order”), or Online Order Form (the “Order Form”) sets forth which Services you are purchasing, the party entering the agreement (the “Client,” “you” or “your” and together with Why Unified® the “Parties” or each individually a “Party”), the costs for such Services, the minimum Initial Term, and other relevant details. As used in this Agreement, the term Service Agreement means any Service Agreement, Service Orders or Online Order Form or any combination of the foregoing. These Terms of Services (the “Terms of Service” or the “Terms”) are incorporated by reference into and made part of any Service Agreement submitted to Why Unified® and govern the relationship between you and Why Unified®. These Terms of Service are effective on the date the Service Agreement is signed (the “Effective Date”) and remain in effect until terminated as provided below. The Service Agreement, the Terms of Service, and the other documents incorporated by reference herein are collectively referred to as the “Agreement.” These Terms of Service may be reviewed at any time at s.whyunified.com/terms.

 

WHY UNIFIED® PROVIDES THE SERVICES AND SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPTS AND COMPLY WITH THEM. BY EITHER SIGNING A SERVICE AGREEMENT/SERViCE ORDER OR BY CHECKING THE “ACCEPT” BOX ON THE SIGNUP ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF YOU DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES OR SOFTWARE.

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, Why Unified® DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY Why Unified®, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.

 

The Service Agreement, Service Order, and/or Online Order Form, together with these Terms of Service, the Why Unified® Privacy Policy located at https://s.whyunified.com/privacy-policy/, and any other ancillary documents incorporated by reference in these Terms of Service constitute the entire agreement between the Parties. Why Unified® limits acceptance to these agreements and objects to any other additional or different terms in the Client’s acceptance.

 

1. About the Services and these Terms of Service. Why Unified® provides a variety DIFM (“Do It For Me”) marketing, and business management products and services to businesses of all sizes. All DIFM plans included a dedicated individual or team to help with your account success. To qualify as a DIFM plan, your Service Agreement must have services with a minimum monthly payment of $195 or higher. Your Service Agreement or Service Order will outline the products and/or services applicable to your account, the Term of our business relationship, and the price for each of the products and/or services. These Terms of Service define the legal terms and conditions that govern our products and services and your Service Agreement. You may add additional one-time or recurring products and services at any time during the life of this Agreement by either verbally communicating the request to your Marketing Executive/Why Unified® representative or communicating your request via email. Unless the Parties agree otherwise in writing, all products and services added during the Term shall be governed by this Agreement.

 

2. Definitions. The Why Unified® products, services, and other capitalized terms have the definitions as defined in this section or in the section where they first appear.

 

a. Ads/Ad Credits. Ad Credits are used to run advertisements across digital platforms such as Facebook, Inc. and Google, Inc. Ad Credits cost one dollar ($1.00) per credit. Ad Credits are allocated to media buy (paid placement). Please note, the media buy allocation percentage is subject to change without notice. Ad Credit costs, including cost-per-click reporting and more, are reflected through the Why Unified® platform for return on investment (ROI) and cost-per-conversion tracking/analysis. Ad Credits are subject to tChe terms and conditions of the applicable 3rd Party provider (e.g., Google, Bing, YouTube, Facebook), and some services may not be available for some client products or services. You may access a performance report which includes raw data on costs, clicks, and impressions at the Google advertising account level at any time by clicking the applicable link on your Why Unified® dashboard. Ad Credits are non-refundable, but may be allocated to other services with a written request (email acceptable). If you cancel your recurring Ad Credit product, your credits on file will remain in your account for one billing cycle, and must be used or transferred to another product during your next monthly billing cycle or may be forfeited. If we are developing a website for you, your Ad Credits and related services cannot be used until your site has gone live with your approval. Actual ad position on 3rd Party websites is based on several factors, and top position cannot be guaranteed. Unless instructed otherwise, your Marketing Executive will optimize your advertising campaigns to target the top three ad positions for your keywords where possible. In any billing cycle, Why Unified® may spend any credits you have on file. Why Unified® will monitor your Ad Credit spend to keep you on budget, but in rare cases, Why Unified® may spend over and above the number of credits you have on file. Any balance of your Ad Credit budget remaining at the end of a monthly billing cycle, positive or negative, will be rolled over to the next monthly billing cycle. Any negative balance remaining at the end of the Term is due at that time. We use a master advertising account with each 3rd Party Ad Credit services provider (Google, Bing, Yahoo, Facebook, etc.). We will set up an advertising account for you within our master advertising account. You acknowledge that you must use our master advertising account in order to use Ad Credits for these services. Because all of our accounts are linked within our master advertising accounts, we will not provide access to view or control your advertising or analytics accounts at the advertising account level of the respective service provider. You acknowledge that we will not transfer any advertising accounts or related account access to you at the end of the term. You can get a report of your advertising performance and Ad Credit usage by logging into the Why Unified® platform at any time or by contacting your Marketing Executive, if applicable.

 

b. Complimentary Promotions. Why Unified® occasionally offers Complimentary Promotions to new Clients signing a Service Agreement. Complimentary Promotions take the form of funds, credits, or creative hours added to the Client’s account to offset marketing costs under the Service Agreement. Unless otherwise stated, Complimentary Promotions may be used to offset any cost associated with the Service Agreement with the exception of 3rd Party advertising media buy. Complimentary Promotions are fully contingent on Client fulfilling the Initial Term. If you cancel the Service Agreement prior to fulfilling the Initial Term, Client must pay back all Complimentary Promotions spent on Client’s account at the time of cancellation, in addition to any applicable Cancellation Fees.

 

c. Facebook & Google Ads. Facebook & Google Ads shall mean management services for advertising campaigns with Facebook or Google that include planning, creating, launching, and optimizing advertising campaigns.

d. Conversion Funnels. Conversion Funnels shall mean individual landing pages or Website that may or may not cross-connect with multiple pages to present products/services in a consecutive manner.

e. Retargeting. Retargeting shall mean advertising campaigns linked to existing advertising campaigns that use a small undefined percentage of Ad Credits to reach visitors that previously clicked an advertisement.

f. Platform Features. Platform Features shall mean base features that are included with every plan such as Marketing Plan, Marketing Platform, Software, Service, Marketing Assets, Account Manager, Monthly Updates, and Fast Turnarounds.

g. Email Marketing/Nurturing. Email Marketing includes designing, creating, and sending targeted marketing campaigns to your email marketing list through the Why Unified® platform, or a partnering third-party software. Email Marketing includes up to 500 existing contacts (email addresses) transferred into the platform for use, and includes an unlimited number of contacts if they originate from our managed advertising campaigns. By using Email Marketing/Nurturing you agree to the Why Unified® Anti-Spam Policy located at s.whyunified.com/antispam. The Anti-Spam Policy is incorporated into this Agreement by reference. You represent that you will use Email Marketing/Nurturing in compliance with all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity and defamation, and regulations such as HIPAA and other applicable privacy laws.) You agree not to use Email Marketing/Nurturing in a way that is obscene, harassing, threatening, libelous, or in any way that violates or infringes upon any 3rd Party intellectual property rights. You hereby agree to indemnify and hold harmless Why Unified® against any damages, losses, liabilities, and expenses arising from an alleged violation of the foregoing or otherwise relating to your use of the Email Why Unified services.

 

h.Free Marketing Plan. Your relationship with Why Unified Corp will begin with a “Marketing Plan” being created, which can take between 7-14 business calendar days. The objective of the Marketing Report is to provide a “Marketing Plan” which outlines and demonstrates the deliverables of the “Services”. You will have the option to approve the Marketing Report and continue into your monthly subscription, which you acknowledge authorizes your Monthly Billing Commitment and constitutes your pre-approval of the deliverables. You will also have the option to decline the Marketing Report prior to approval and obtain a full refund to the original payment method, which can take 3-5 business days, depending on your bank policies.

 

i. Support. Why Unified® offers support and communication exclusively through email with average response times of 1-3 business days. Phone support is not included.

 

j. Understanding of Services. You certify that you understand the “Marketing Report & Approval of Deliverables” outlined in the Service Agreement and acknowledge that upon your approval of the Marketing Plan the Services that are included with your Service Agreement, will be fulfilled and executed in part or in whole throughout your Monthly Billing Commitment as outlined in your Marketing Plan.

 

 

k.Fees. Your Fees are the amounts you owe pursuant to your Service Agreement. Your Service Agreements will include one-time, monthly and/or annual Fees required for your use of the Services. Fees may also include additional Products and Services are added during the Term at your request.

 

l.Why Unified® Platforms. The Why Unified® Platforms include all of Why Unified®’s software platforms and products offerings. 

 

m.Marketing Client. For the purposes of this Agreement, a Marketing Client shall mean any active Client that is current on its Why Unified® Base Plan Fee.

 

n. Call Tracking/My Click-to-Calls®. If you choose to utilize the Call Tracking a/k/a My Click-to-Calls® service, calls will be recorded for tracking purposes so that we may analyze the performance of ads and optimize accordingly. Call recording can be deactivated if needed while leaving call tracking in place by request. Two inbound call tracking phone numbers are included with every plan; additional numbers may be purchased for an additional cost per month. After cancellation of your account, you may maintain your Call tracking number(s) for a monthly fee. 500 call tracking minutes per month are included with your Why Unified® Account. Additional tracking minutes are available for $.02 per additional minute

 

o. Oracle/Facebook 3rd Party Audience Data. If you choose to use the Oracle 3rd Party Audience Data we will provide access to the Oracle Data Cloud Digital Audiences for use in your Facebook ad campaigns. The cost of the services is fifteen percent (15%) of the total gross amount (prior to any discounts, rebates, or any other offsets) that you spend on media that includes the Oracle Powered Facebook Custom Audiences in any Facebook Ad Sets (your “Gross Media Spend”). An amount equal to 15% of your estimated Gross Media Spend will be taken from your Ad Credits on file prior to your Facebook ad sets running. Any excess charges not accounted for in this estimate will accrue over the month, and you will be billed for these charges in arrears with your regular monthly marketing payment. Your use of these services in connection with Facebook ads is subject to separate terms and conditions, including Facebook’s Advertising Guidelines (currently accessible at https://www.facebook.com/policies/ads, as updated by Facebook from time to time). You represent and warrant that (i) your content complies with all applicable foreign and domestic federal, state and local laws and government rules and regulations (including any laws, directives or regulations relating to privacy, consumer protection, databases, data collection or data transfer) and your privacy policies, (ii) you have provided proper notice and secured proper consent for the collection and use of your content in connection with this Agreement, and (iii) you have procured all rights and licenses, and have all power and authority, necessary to provide your content to the Company without the additional consent of any third party. You further represent and warrant that any of your content provided to the Company for utilization in connection with the Facebook Platform Services (i) consists solely of Personal Data based records (and not cookie-based records or cookie-based records that are appended to Personal Data that were either (x) collected from your customers or (y) purchased or licensed by you from third parties and (ii) is readily available and accessible to you. You expressly agree that Facebook is an intended third-party beneficiary of this Agreement with respect to the provisions set forth in this Section. To use these services, we must provide Oracle with access and permissions to your Facebook Business Manager and/or Ad Accounts to which Oracle has fulfilled Oracle Powered Facebook Custom Audiences to allow Oracle to access, via Facebook reporting APIs, audience usage reporting on an ongoing basis for the use of Oracle Powered Facebook Custom Audiences. You acknowledge and expressly consent to Madwire sharing this information and these permissions with Oracle. EU GDPR Obligations: Your content may not relate to individuals subject to the General Data Protection Regulation (GDPR) 2016/679.

 

aa. Services. For the purpose of this Agreement, Services means any and all Products and Services offered by us pursuant to these Terms of Service.

 

af. Trial Services. Why Unified® may offer an obligation free trial to allow you to evaluate some or all of our Services free of charge. With the exception of the terms specifically related to billing, all of these Terms will apply to free trial accounts (each a “Trial Account”). Your free trial includes reduced access to the Why Unified® Platform. Your Trial Account includes unlimited use of certain services within the Why Unified® platform.

 

aj. Website Hosting. Website hosting for up to one site is included with the Why Unified® Platform for Marketing Clients upon request. Hosting for additional websites or for non-Marketing Clients is available for $300 per year billed annually on a recurring basis. Website hosting for WooCommerce websites for additional websites or for Non-Marketing Clients is $49/month or $588/year. Website Hosting includes up to 100GB of bandwidth per month. Additional bandwidth is available for an additional cost, contact your Why Unified® representative for current pricing. Hosting includes up to 3GB of data storage; additional storage will require an additional fee of $5 per additional 3GB of storage per month. These overages will be invoiced monthly and will be calculated at the time of invoicing. Conversion Funnel websites are a proprietary hosted solution compatible only with Why Unified® servers and must be hosted by Why Unified®. Upon cancellation, website hosting may be purchased for $300 per year. If your hosting services continue after the cancellation of marketing, such hosting services will continue to be governed by these Why Unified® Terms of Service. BigCommerce, Shopify, and some other 3rd Party e-commerce site design files must be hosted on their respective servers. Upon cancellation of marketing, BigCommerce and Shopify sites will continue to be hosted on these platforms. If you have issues with your 3rd party website hosting, you must contact those entities directly.

 

3. Compliance with Laws/Prohibited Content. Client shall not use or permit the Services to be used in violation of any applicable national, state, or local laws or regulations. Without limiting the foregoing, Client may not use any Why Unified®’s Services for any illegal activity including the storage or transmission of information, data, files, or links to content that violate any applicable local, state, national, or international law. This includes, but is not limited to, pirated software, copyrighted data or links thereto, the propagation of computer worms or viruses, the use of false identities, or attempts to gain unauthorized entry to any network. Pornography and sex-related merchandising are prohibited on all Why Unified® servers. This includes sites that may infer or link to sexual content. Spamming sites and sites selling or promoting bulk email software, services, or addresses are also prohibited. Why Unified® may terminate this agreement if it determines, in its sole discretion, Client has violated this policy.

 

4. Client Obligations. In addition to making all required payments, Client shall (a) cooperate with Why Unified® in all matters relating to the Services and provide access to Client’s advertising accounts including Client’s Google Adwords and Analytics accounts as necessary; (b) respond promptly to questionnaires and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Why Unified® to perform Services in accordance with the requirements of this Agreement; and (c) provide such customer materials or information as Why Unified® may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects. Why Unified® is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.

 

5. Payment. Once you have executed your Service Agreement, you will be responsible for payment in full of all associated Fees. All Fees are due in US dollars. Unless otherwise stated, Client will pay all Fees due under this Agreement monthly, in advance. Fees for one-time services will be due in full on the Effective Date, or as otherwise provided by your Service Agreement. For recurring Fees, the initial payment will be taken on the Effective Date, and you will be billed for subsequent Fees as outlined in your Service Agreement. For monthly recurring Services, unless the Service Agreement states otherwise, you will be billed on the same numerical day of each month as the Effective Date. For example, if the Effective Date is November 17th, you will be billed for recurring monthly payments on December 17th, January 17th, and so on. The last billing date each month is the 25th. If your Effective Date is after the 25th, the first payment will be taken on the Effective Date, and recurring payments will bill on the 25th of each month. For annual recurring services, you will be billed for the first year on the Effective Date, and you will be billed for subsequent payments on the anniversary of the Effective Date unless canceled as provided in Section 5 below. You acknowledge that you are required to pay the full amount due for the Services each month through the Initial Term and Renewal Terms at no less than the monthly recurring marketing total listed in your Service Agreement. You will be required to agree to all applicable payment authorization forms which authorize recurring billing in accordance with your agreement. Why Unified® shall have the right to charge your credit card or debit from your account through ACH for Fees in accordance with these Terms of Service and the Service Agreement. Client warrants the validity of any ACH information provided to Why Unified® and acknowledges that Why Unified® is entitled to debit Client’s account for any ACH fees charged to Why Unified® due to Client’s error, including, but not limited to, incorrect information, invalid account numbers and non-sufficient funds. Why Unified® uses a credit card updating service that automatically updates credit card numbers where a credit card has expired or been replaced. You acknowledge that Why Unified® has a right to charge any credit card updated in this manner in accordance with these Terms of Service and the Service Agreement. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL FEES MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED OR IF A PAST PAYMENT HAS BEEN DISPUTED.

 

6. Term/Termination.

a. Term. The Agreement shall begin on the Effective Date and will remain in effect until terminated as provided below. For recurring accounts, the Service Agreement sets forth the minimum commitment term (the “Initial Term”) and authorizes recurring monthly billing for such period. Your Initial Term may be extended by any added Service Order or Online Order Form. If there is a conflict the most recent agreement’s Initial Term shall control. Only months in which full payment has been received will count as a month of marketing under the Initial Term. Client acknowledges that Client’s digital marketing plan is designed based on the Initial Term defined in Client’s Service Agreement. After the Initial Term, the Term will be automatically renewed for successive one-month periods (each, a “Renewal Term”) or as otherwise provided in the Service Agreement (the Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”)

 

b. Cancellation. Client may cancel the services by providing no less than 60 days’ written notice of cancellation via mail or email addressed to Client’s Marketing Executive or Project Manager, as applicable.

c. Cancellation. If you wish to cancel the Services, you may do so only by providing both written notification of cancellation and the Cancellation Fee. The amount of yourCancellation Fee is defined in your Service Agreement. If your Service Agreement does not define the Cancellation Fee it shall be equal to the lesser of either (a) as defined in “Cancellation Terms” or  (b) $1,500. The Cancellation Fee payment is in addition to your monthly payments to date and may not be paid with credits on file or any prior payment. The Cancellation Fee must be provided within five (5) business days from our receipt of your written notice of cancellation. No cancellation of a Service Agreement will take effect until the  Cancellation Fee has been paid, and you will continue to be billed monthly until we receive both proper written notice of cancellation and the Cancellation Fee, as applicable. Upon execution of this agreement, Why Unified will be investing considerable work into Client’s business and online marketing activities. This investment is being made with the understanding that you are committing to pay for the Services. Client recognizes the aforementioned investment, up-front sales, setup, and Services being rendered up-front and in most cases in-advance, and opportunity costs that Why Unified bears in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate Why Unified for cancellation of the Services.

 

d. Cancellation Revocation. You may, upon written notice (email is acceptable), revoke such cancellation after you have made a cancellation request, in which case the Service Agreement will be reinstated, and all applicable services will be reinstated upon payment in full of all amounts owed. If the cancellation fee has already been paid it shall be applied to any future amounts owed.

 

e. Why Unified®’s Right to Cancel. We may cancel this Agreement at any time for any reason, and in our sole discretion, by providing written notice of cancellation to you. Cancellation will take effect immediately or at the end of the then-current billing period at our sole discretion. Written notice may be provided to you via email. If we terminate this Agreement pursuant to this Section 5.e, we will reimburse you for any unused credits and funds within 30 business days from the effective cancellation date.

 

f. Pause or Downgrade of Service. During the Initial Term, you may request a pause or a downgrade in your Services, however it will be in Why Unified®’s sole discretion to determine if a pause or downgrade in Services is appropriate. No pause or downgrade during the Initial Term will be effective without a signed written confirmation from both Why Unified® and the Client. After the Initial Term, you may pause or downgrade your account with no less than 30 days’ written notice. After the Initial Term a downgrade that fully eliminates the recurring portion of certain services shall be deemed a cancellation of such services and will terminate all Why Unified® obligations related to that service at the end of the then current billing cycle. The Parties agree that the preceding two sentences shall not apply to temporary downgrades accompanied by a signed agreement. Client may upgrade or reinstate services at any time with a written or oral request.

 

g. No Refunds and Unused Credits. Unless we cancel the agreement pursuant to Section 5.e., no refunds will be provided for any amounts already paid to Why Unified®. Upon cancellation of this agreement by you for any reason, any and all unused funds or credits will be forfeited. If you are a Marketing Customer and downgrade to hosting only services or any other recurring services, any and all unused funds credits or creative hours remaining in your account at the time of the downgrade will be forfeited. The preceding sentence does not apply to temporary downgrades with a signed agreement.

 

h. Collection of Amounts Owed. You agree to pay all costs of collection (including attorneys’ fees, costs, and other legal and collection expenses) incurred by Why Unified® in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).

 

i. Charge Disputes. If you dispute any payment with your credit card company or bank, and such dispute is resolved in Why Unified®’s favor, you will be assessed a charge of $300 per dispute initiated. You acknowledge that this amount is not a penalty, but a reasonable amount of liquidated damages to compensate Why Unified® for the additional costs incurred in defending your payment dispute.

 

7. Intellectual Property

a. Your License Grant to Why Unified®. During the Term, you hereby grant to Why Unified® a non-exclusive, royalty-free worldwide license to use, copy, backup, modify, display, broadcast, and transmit any of your content, including but not limited to your website, text, images, logos, copyrights, trademarks, service marks, promotional materials, photos, audio, and video content relating to your existing website, as applicable, to the extent necessary and for the sole purpose of allowing Why Unified® to perform the Services. This license will terminate upon termination of the Service Agreement.

 

b. Ownership of Creative Deliverables and Content. Upon receipt by Why Unified® of full, unconditional payment from Client, Client shall own all rights, title, and interest in and to the Creative Deliverables created under this Agreement. Where required, Client will receive an export of the Creative Deliverables within 7-10 business days after unconditional payment from Client and all associated Cancellation Fees. Why Unified® will retain a non-exclusive, non-revocable license in the completed Creative Deliverables, and Why Unified® reserves the right to use the Creative Deliverables for advertising, publication, promotion, display or other purposes.

 

c. Ownership of Conversion Funnels. Notwithstanding Section 7.b. and Section 7d, Why Unified® retains all copyrights in all non-custom website designs delivered under this Agreement in accordance with Section 1.i. Upon valid cancellation of this Agreement in accordance with Section 6, and so long as full, unconditional payment has been received by Why Unified® for any amounts owed by Client under this Agreement, Client will be granted a perpetual, royalty-free, revocable, non-transferable license to use, copy, and publish any website design and related materials delivered to Client under this Agreement. Why Unified® reserves the right to revoke this license only if either (1) Client does not fulfill the Initial Term and/or pay the waived Setup Fee fee or (2) Client initiates a payment dispute for any past payment.

 

d. Work Product Ownership. Any copyrightable works, ideas, discoveries, inventions, patents, products, marketing data, marketing campaigns or other information (collectively, “Work Product”) developed in whole or in part by Why Unified® during the course of this Agreement but excluding the Creative Deliverables and any materials referenced as belonging to Client pursuant to Section 7a. above, shall be the exclusive property of Why Unified®.

 

e. Trademarks. All trademarks used in this agreement and used in conjunction with the Services are the property of their respective owners or licensors. With the exception of the trademark rights explicitly granted in this Agreement, no other rights to any trademarks are granted herein. Use of the Why Unified® trademarks without the express written consent of Why Unified® is prohibited.

 

8. Authorization and Limited License to the Access Why Unified® Software Platforms. Upon execution of a marketing Service Agreement, and for so long as your Service Agreement is in effect and you are current on all applicable fees or payments, you will be granted a revocable, non-transferable, non-sublicenseable, non-exclusive limited license to access the Why Unified® Software Platforms. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in the Why Unified® Platforms, including, without limitation, Why Unified®, the platforms, software, data, applications, methods of doing business, or any other content provided through Why Unified® whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Why Unified® Platforms and Services, are and will remain with Why Unified®. You may only access the Why Unified® Platforms via a web browser or mobile application. Your access shall be password protected and you acknowledge that you shall not share your password or otherwise permit any other person to access or use the Why Unified® Platform or Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of Why Unified® Platform or Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Why Unified® Platform or Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Why Unified systems, in whole or in part; (d) bypass or breach any security device or protection used by the Why Unified® Platforms or Services, or access or use the Why Unified® Platform or Services other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Why Unified®’s systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Why Unified®’s systems or Why Unified®’s provision of services to any 3rd Party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property, or proprietary rights notices from any Services or other Why Unified® materials, including any copy thereof; (h) access or use the Why Unified® Platforms or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of Why Unified® or any 3rd Party or in a way that violates any applicable law; (i) access or use the Why Unified® Platforms or Services for purposes of competitive analysis of the Services, for the development, provision, or use of a competing software service or product, or any other purpose that is to Why Unified’s detriment or commercial disadvantage. In addition to the other remedies Why Unified® may have, Why Unified® may terminate the foregoing license and this Agreement if it determines, in its sole discretion, that you have violated the provisions of this license.

 

9. Representations. By signing, you personally represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of the Service Agreement, this Agreement constitutes a legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms. Client further represents that Client has the right to enter this agreement and use all intellectual property, including, but not limited to copyrighted materials and trademarks, supplied to Why Unified® for use in conjunction with the services.

 

10. Agency. If you are purchasing the Services on behalf of another company, you personally represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement. Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Terms of Service.

 

11. DISCLAIMER OF WARRANTIES. Why Unified® PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE SERVICES ARE INTERRUPTED OR DELAYED, Why Unified®’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Why Unified® DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, Why Unified® MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.

 

12. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Why Unified® SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO Why Unified® IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. WITHOUT LIMITING THE FOREGOING, Why Unified® IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO ANY CONTENT, OMISSIONS, OR ERRONEOUS DATA APPEARING IN CLIENT’S WEBSITE, BLOGS, OR ON SOCIAL MEDIA OR ANY LOSS, DAMAGE, CORRUPTION, OR BREACH OF CLIENT DATA WITHIN CLIENT’S Why Unified® ACCOUNT. WE FURTHER DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THESE SERVICES.

YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.

 

13. Dispute Resolution.

a. Good Faith and Cooperation. Each of the Parties agrees to cooperate in good faith, reasonably, and in such a manner as may be necessary or appropriate to implement and give effect to the terms, conditions, and agreements contained herein. Each Party agrees to contact the other in writing (email is acceptable) regarding any claims, disputes, or controversies, and allow the other Party no less than 30 days to cure the issue or demonstrate that there is in-fact no issue present under these Terms of Service prior to initiating any formal legal action, payment dispute, or publishing any disparaging comments detrimental to the reputation, business, or business relationships of the other.

 

b. Agreement to Arbitrate. If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any and all disputes, controversies, or claims arising out of, relating to, or in connection with this Agreement and/or the Services, including the breach, termination, or validity thereof, through confidential binding arbitration in Newark, Delaware by a single arbitrator. Such arbitration shall be administered by the American Arbitration Association (AAA) and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

 

c. Exceptions to Agreement to Arbitrate. Why Unified® may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above. In the event that the Parties agreement to arbitrate is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts located in New Castle County, Delaware, respectively. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c.

 

d. Costs and Attorney’s Fees: Except as otherwise provided in these Terms of Service, the Parties will be responsible for their own costs and legal fees.

 

e. Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.

 

14. Indemnification. You agree to indemnify, defend, and hold Why Unified® harmless from any and all liability, claims, damages, and settlements due to any third party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Client’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Terms of Service by you or any third party (authorized, permitted or enabled by Client). This indemnification includes, but is not limited to, any actions, including actions alleging or related to: infringement of any intellectual property (including trademark, patent and copyright actions), defamation, false or misleading advertising, end user personal or financial data, applicable privacy laws, PCI compliance, Client’s order processing, billing, fulfillment, shipment, collection, or actions related or associated with any products or services offered, sold, or licensed through Client’s website. If Client is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Client waives any claims it may have against Why Unified® arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless Why Unified® against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.

 

15. Non-Solicitation. You agree not to directly or indirectly solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee of Why Unified® or its subsidiaries, or induce the termination of employment of any Why Unified® employee during the Term and for a period of three (3) years following the termination of this Agreement.

 

16. Miscellaneous.

a. Choice of Law: This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of Delaware without giving effect to conflict of laws principles.

 

b. Entire Agreement. These Terms of Service together with the applicable Service Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Why Unified® limits acceptance to these agreements, and objects to any other additional or different terms in the Client’s acceptance.

 

c. Amendment/No Waiver. We may update and change any part or all of these Terms of Service. If we update or change the Terms of Service, the updated Terms of Service will be posted at https://s.whyunified.com/terms and we will let you know via email and/or via notification in the Why Unified Platforms. If you do not agree with a modification to the Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Terms of Service prior to modification for the remainder of your Initial Term or your current Renewal Term. Upon renewal, the Terms of Service published on our website will apply. Any material amendment to your Service Agreement must be contained in writing and executed by the Parties. The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party’s right to require performance at any time thereafter.

 

d. Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, click box or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.

 

e. Severability. If any provision of this Agreement or the application thereof is held invalid, illegal, or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect.

 

f. Assignment. Neither Party may assign any part of the Agreement without the prior written consent of the other Party, provided, however, that either Party may freely assign this Agreement in connection with a sale of substantially all of its assets or a change of control of at least 50% of the voting equity interests of the business effective upon written notice to the other Party.

 

g. No Third-Party Beneficiaries. The parties do not confer any rights or remedies upon any person other than the parties to this Agreement and their respective successors and permitted assigns.

 

h. Third-Party Sites and Products. Third party sites and products are not under our control and are provided to you only as a convenience. The availability of any third party website or product does not mean we endorse, support or warranty the 3rd Party site or product. We do not warranty the performance of any third party product or service. If you are using a WooCommerce, certain plugins may be required for certain website functionality. You will be required to create your own WooCommerce account to access these plugins for your website, and you may be required to pay WooCommerce an additional fee for certain plugins.

 

i. HIPAA. If Client is a “covered entity” or a “business associate” thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, “HIPAA”) or is otherwise subject to any HIPAA-related or similar legal requirement, Client is solely responsible to ensure full compliance therewith. Client is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation. Why Unified® makes no claims or warranties regarding compliance with HIPAA.

 

j. EU/EEA Data Processing. To the extent that we process customer data that is subject to the European Union General Data Protection Regulation (“GDPR”) on your behalf, such processing will be undertaken pursuant to the terms of the Why Unified® Data Processing Agreement (the “DPA”) located at https://www.s.whyunified.com/data-processing-agreement/. Please contact your Why Unified representative to receive a signed version of the DPA. The DPA is hereby incorporated by reference for all accounts whereby we process data subject to the GDPR. You acknowledge that in all cases Why Unified® acts as the data processor of this data and you are the data controller of the data. You are required under the GDPR to obtain and maintain documentation of the applicable legitimate purpose and consent to process any GDPR data shared with Why Unified® under this Agreement.

 

k. Google Third Party Disclaimer. Why Unified® resells Google AdWords as a Google Third Party Partner. For more information on this program please see Google’s “Working with a Third-Party Disclaimer” located at http://www.google.com/adwords/thirdpartypartners/.

 

l. Bing Ads Agreement. Why Unified® resells Bing Ads as a Bing Ads Elite SMB Partner, if you use our services to market on Bing you agree to be bound by the Bing Ads Agreement located at: https://advertise.bingads.microsoft.com/en-us/resources/policies/microsoft-bing-ads-agreement.

 

m. Facebook Advertising Guidelines. Your use of these services in connection with Facebook ads is subject to separate terms and conditions, including Facebook’s Advertising Guidelines (currently accessible at https://www.facebook.com/policies/ads, as updated by Facebook from time to time).

 

n. Relationship of the Parties. The Parties to the agreement are independent contractors, and no agency, partnership, joint venture, or employee/employer relationship is intended or created.

 

o. Referrals. Why Unified® may provide incentives to 3rd parties to introduce potential Clients to Why Unified®. From time to time, Why Unified® may receive referral fees, incentives, revenue shares or rebates (the “Incentives”) from 3rd party advertisement providers, payment processors, and/or other 3rd parties based on hitting revenue or advertising spend thresholds or referring potential customers to the 3rd party provider. You acknowledge that you are not entitled to any Incentive or share of any Incentive received by Why Unified®.

 

p. Survival. The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Client remains liable for any amounts due to Why Unified® as of the effective date of termination.

 

q. Subcontracting. Why Unified® may, without your consent, subcontract to any party the performance of all or any of Why Unified®’s obligations under this Agreement provided that Why Unified® remains primarily liable for the performance of those obligations.

 

r. Taxes. Sales tax and/or VAT tax may be added to certain products or services in certain states and countries. Sales and VAT taxes are automatically calculated based on Client’s billing address and the product or services on Client’s invoice. Client is responsible for any sales, use or VAT taxes not collected by Why Unified®.

 

s. Call Recording. You acknowledge that we may record Client phone calls for quality control purposes.

 

t. CCPA Contract Clauses. If we are processing data for you that is protected by the California Consumer Privacy Act (CCPA) such data will be processed in accordance with our CCPA Contract Clauses located at s.whyunified.com/ccpaclauses. If you are covered by the CCPA, it is your obligation to inform us of those obligations so that we can provide you with the CCPA Contract Clauses to sign.

 

u. Trade Name. Why Unified® is a federally registered trademark and registered trade name of Why Unified Corp a Delaware corporation.

 

v. Communication Preferences. You consent to receiving electronic and telephone communications from us relating to your account or the Services. These communications may involve telephone calls to any number you provide, SMS text messages to a phone number you provide, sending emails to any email address you provide, and posting communications to you in the Why Unified Platforms, or in the “My Account” page. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receiving certain other communications from us, such as newsletters about new features and content, special offers, promotional announcements and customer surveys via email or other methods. Please review our Privacy Policy for further detail on our marketing communications.

 

w. Headings. Section headings are provided for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any section.

 

x. Force Majeure. Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.

 

y. Notices. All notices required by one party hereunder shall be provided in writing to the other Party at the mailing address or email address provided to the other Party from time to time in writing.