THIS PARTICIPATING CLIENT AGREEMENT (“Agreement”) is made by and between Max Velocity Marketing LLC, with its principal place of business at 3418 Humboldt St, Norfolk, VA 23513, and the business name identified on page one (1) attached hereto (“Client”), as of the last date set forth on the signature page hereto.
I. SERVICES AND COMPENSATION
1. APPOINTMENT AND GENERAL SERVICES. Client hereby appoints Max Velocity Marketing as its non-exclusive provider of digital marketing and other related services, for Client’s website identified on page one (1) hereto (the “Client Site”). Max Velocity Marketing hereby accepts such appointment and agrees to provide services in respect of the Client Site, including but not limited to the following:
developing/building the Client Site (if part of the services client is signing up for);
website hosting and management services for the Client Site (either directly or through a contract with a third party at Max Velocity Marketing’s sole discretion);
providing Search Engine Optimization (SEO) services (if part of the services client is signing up for);
providing Pay-Per-Click (PPC) and Remarketing Services (if part of the service client is signing up for); and
related record‑keeping and reporting.
The foregoing services and additional services that may be performed by Max Velocity Marketing are more specifically described on page one (1), under Max Velocity Marketing Products, hereto as “Standard Services” and “Optional Services”, as applicable, and are generally referred to herein collectively as the “Services”. Notwithstanding anything herein to the contrary, the Services provided hereunder do not and shall not in any event include any maintenance services for the Client Site, and Client shall be solely responsible for the maintenance of the Client Site.
In connection with the Services provided above, Max Velocity Marketing may, at its discretion and at any time without prior notice to Client, modify the Client Site as long as the basic functionality remains substantially the same. Max Velocity Marketing will use reasonable care in updating and modifying the Client Site hereunder; provided, however, Client is solely responsible for verifying the accuracy of the information entered on the Client Site by Max Velocity Marketing, and Max Velocity Marketing expressly disclaims any and all responsibility and liability for errors of any kind with respect to any and all information included on the Client Site. In addition to and not in limitation of the foregoing, Client is solely responsible for updating, as often as required, information included on the Client Site with respect to its products, services, website specials, events calendars and any other areas that Max Velocity Marketing provides Client with the ability to update (collectively, “Client Content”). Additional terms and conditions regarding the Client Site and Client Content, including the parties’ respective ownership rights and certain other rights and restrictions with respect thereto, are set forth below under “General Terms and Conditions”.
Client shall pay to Max Velocity Marketing the fees set forth on page one (1) for all applicable Services provided hereunder. Max Velocity Marketing shall begin billing Client (i) for the website fee as of the date a “live version” of the Client Site is launched and (ii) for all other fees as of the date Max Velocity Marketing commences providing the applicable Services (all set‑up fees are payable immediately). For the first month that Max Velocity Marketing begins providing the applicable Services, it will bill Client (1) for the full month if the date on which Max Velocity Marketing begins providing the applicable Services falls on or before the 14th day of the month; or (2) for half of the month if the date on which Max Velocity Marketing begins providing the applicable Services falls on or after the 15th day of the month. Max Velocity Marketing shall have the right after the initial term of this Agreement, and after each renewal term thereafter, to change the fees payable for “Standard Services” for the next renewal term to Max Velocity Marketing’s then current rate upon thirty (30) days written notice to Client prior to the expiration of the applicable initial or renewal term. Client may object to any increase by giving written notice to Max Velocity Marketing at least twenty (20) days prior to the expiration of the thirty (30) day period and, in the event the parties cannot agree on an appropriate level of compensation, this Agreement shall terminate at the end of the then-current term. Fees for “Optional Services” may be changed at any time upon thirty (30) days notice; provided, however, that Client may terminate the applicable Optional Service(s) on thirty (30) days notice to Max Velocity Marketing in the event of such fee change. In addition to the foregoing fees for Services, Client shall pay to Max Velocity Marketing such compensation for providing paid third-party plugins or themes that are used in service for the Client.
Client will pay the invoices via automated clearinghouse (“ACH”) or credit card as provided on the secure site link attached or emailed separately and Client’s account shall be debited via ACH or its credit card charged on the 1st day of each month for the applicable invoice. Notwithstanding anything herein to the contrary, Client shall hold harmless Max Velocity Marketing from liability for any wrongful act or omission in connection with the payment processes hereunder, including, without limitation, any act or omissions by any ACH, any financial institution or any person including any data processing vendor used by Max Velocity Marketing or Client.
All late payments hereunder shall be subject to a late fee of one and a half percent per month, plus interest at the rate of one percent per monthly billing period (twelve percent (12%) per annum), but not to exceed the maximum amount permitted by applicable law.
II. GENERAL TERMS AND CONDITIONS
3. TERM & TERMINATION.
Term. This Agreement shall commence on the commencement date, as set forth on page one (1), and unless earlier terminated in accordance with the terms hereof shall continue for the initial term set forth on page one (1). Thereafter, this Agreement shall automatically renew for successive twelve (12) month renewal terms, unless either party provides the other party with written notice of its desire not to continue this Agreement by providing a thirty (30) days written notice, in which case this Agreement shall terminate at the end of those thirty days following receipt of notice to term.
Termination for Breach. Either party may terminate this Agreement for any breach of the Agreement by the other party that is not cured within thirty (30) days after receipt of written notice of the breach from the non-breaching party; provided, however, that the cure period for breach by Client of an obligation to pay when due any fees payable hereunder shall be ten (10) days.
No Fault Termination. Client may terminate this Agreement at any time, following the initial twelve (12) months of service, upon delivery of (i) written notice to Max Velocity Marketing and (ii) payment (buyout) to Max Velocity Marketing in an amount equal to (x) the number of months remaining in the then-current term of the Agreement multiplied by (y) the Service fees. Max Velocity Marketing may terminate this Agreement at any time on thirty (30) days’ prior written notice to Client.
Effect of Termination. Upon termination of this Agreement for any reason, Max Velocity Marketing shall terminate the Client Site (if hosted by Max Velocity Marketing), remove user access thereto and change passwords therefor. Client shall remain responsible for the payment of all fees described herein incurred prior to the effective date of termination.
Client Rights. Client shall be the sole owner of the domain name(s) for the Client Site registered by or on behalf of Client and shall be solely responsible for any applicable domain name registration fees (Max Velocity Marketing may host domain name(s) on behalf of Client, but shall have no ownership rights or responsibilities with respect thereto). Max Velocity Marketing shall have no responsibility and shall be held harmless from liability for Client’s failure to renew or maintain in good status Client’s domain name(s), and Client shall not be entitled to any credit of Max Velocity Marketing’s fees if the Client Site is unavailable due to failure to maintain domain name(s) in good standing. Client shall own images, text and any and all other Client Content loaded by Client into the Client Site, unless the content is created or provided by Max Velocity Marketing for Client, in which case such content will be owned by Max Velocity Marketing as provided below.
Max Velocity Marketing Rights. Max Velocity Marketing shall be the sole owner of the Client Site, any software or databases used in the development and operation of the Client Site, all Max Velocity Marketing Brand Features (defined below) and all content of the Client Site not specifically identified in this Agreement as Client Content, including, without limitation, any and all graphics designed by Max Velocity Marketing utilized in connection with or otherwise displayed on the Client Site. Max Velocity Marketing shall be the sole owner of the information contained in the databases that are used in the management of the Client Site and in performing all applicable Services, provided, Client shall have the right to access any such information that pertains specifically to Client. In the event of termination of this Agreement, Client shall have the right at its expense to obtain copies of all of Client’s customer data. In addition to and not in limitation of Max Velocity Marketing’s other rights hereunder, Client acknowledges that Max Velocity Marketing may use and/or transfer to third parties the data collected by Max Velocity Marketing or provided to Max Velocity Marketing by Client and/or Client’s customers in connection with the Services provided hereunder, subject to applicable law.
Data Rights. In addition to and not in limitation of Max Velocity Marketing’s other rights hereunder, Client acknowledges and agrees that, in connection with Max Velocity Marketing’s provision of the Services hereunder Max Velocity Marketing may use and/or transfer to third parties the data collected by Max Velocity Marketing or provided to R Max Velocity Marketing by Client and/or Client’s customers in connection with the Services provided hereunder, subject to applicable law (collectively, “Client Data”). In addition, and notwithstanding anything to the contrary contained in this Agreement, Client hereby grants Max Velocity Marketing the non-exclusive, royalty-free right and license to (i) repurpose and/or aggregate the Client Data, (ii) track, analyze and/or create reports related to aggregate activity and/or aggregate results obtained in connection with Client’s use of any Services (including use by Client’s customers of any Services or Client Sites) and share such information with its affiliated companies and/or with third parties, (iii) share Client Data with third parties to the extent Max Velocity Marketing deems necessary in connection with providing the Services hereunder, (iv) utilize such Client Data to, among other things, create, market and sell products and services, and (v) use, store, modify, redistribute, sublicense, transfer and sell to third parties, in aggregated form, the Client Data or other any information tracked, analyzed, reported or otherwise received by Max Velocity Marketing in connection with providing the Services. (For the avoidance of doubt, “aggregated” data shall not include any information that in and of itself may be used by a third party to (a) identify a Client’s customer, or (b) determine the financial terms of any sale made by Client.) Client further agrees that Max Velocity Marketing may, and Client expressly grants Max Velocity Marketing the right to, disclose and provide to its affiliates and representatives, an its partners, consumer lead information and disposition status thereof with respect to consumer leads that are provided or sold to Client by any of Max Velocity Marketing’s affiliates or representatives.
5. CLIENT SITE CONTENT. Neither party shall place any pornographic, obscene, inflammatory or otherwise offensive pictures, banners, links or text on the Client Site. Max Velocity Marketing shall, in its sole discretion, make the final determination over whether any content is in violation of the foregoing sentence. Client shall have the right to place on the Client Site links from other third parties.
6. ADVERTISING AND BRAND FEATURES. Client represents and warrants that it has and shall maintain the right and authority to display on the Client Site all applicable OEM and/or distributor vehicles, products, logos and trademarks and any and all other Client Content. Client authorizes Max Velocity Marketing to use its logo, images and information on the Client Site and on Max Velocity Marketing’s national website as Max Velocity Marketing deems appropriate to promote Client and Max Velocity Marketing’s services. Max Velocity Marketing owns and shall retain hereunder all right, title and interest in and to the names “Max Velocity Marketing”, “Max Velocity Marketing Client” and “Max Velocity”, together with any trademarks and/or service marks that are hereafter adopted in connection with the Services (“Max Velocity Marketing Brand Features”). Client shall not advertise nor use any Max Velocity Marketing Brand Features in any manner other than to advertise that Client is a Max Velocity Marketing customer and participates in programs authorized or sponsored by Max Velocity Marketing. Upon termination of this Agreement for any reason, Client shall immediately discontinue the use and advertising of any Max Velocity Marketing Brand Features, or otherwise suggesting any sponsorship or approval of Client by Max Velocity Marketing or any affiliation between Client and Max Velocity Marketing. For clarity, all logos, trademarks and service marks used on the Client Site shall remain the property of their respective owners.
7. INDEMNIFICATION, DISCLAIMER AND LIMITATION OF LIABILITY.
Indemnification. Each party shall defend, indemnify and hold harmless the other party and its respective directors, officers and employees from and against any and all third party claims, and all settlements, judgments, costs, penalties and expenses, including reasonable attorney’s fees (“Losses”), incurred in connection with such third party claims, that arise out of or result from the indemnifying party’s gross negligence, willful misconduct or breach of this Agreement. In addition, Client shall defend, indemnify and hold harmless Max Velocity Marketing from any and all Losses incurred by Max Velocity Marketing arising out of, resulting from or related to (i) an OEM’s claim of copyright or trademark infringement, whether alleging that Client is not authorized to sell the OEM’s products or display its products, catalog or logos on the Client Site or for any other reason, (ii) any failure, error or loss incurred by Client due to the automatic upload of vehicle or product inventory provided to Max Velocity Marketing by any third party on behalf of Client, (iii) any claim, injury, demand or judgment based on contract, tort, or other grounds (including any warranty) arising directly or indirectly out of the sale or use of any vehicle, product or accessory sold by Client, or (iv) any allegation that any Client Content infringes (directly or in a contributory manner), violates or misappropriates any copyright, trademark, service mark or other intellectual property right of any third party or constitutes an unlawful disclosure, use or misappropriation of a third party’s trade secret or other property.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MAX VELOCITY MARKETING MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CLIENT SITE OR THE SERVICES PROVIDED HEREUNDER, AND MAX VELOCITY MARKETING HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, (i) IN NO EVENT SHALL MAX VELOCITY MARKETING, OR ITS SUBCONTRACTORS, EMPLOYEES, REPRESENTATIVES OR AFFILIATES, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (AND WHETHER OR NOT MAX VELOCITY MARKETING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OR DISCLOSURE OF DATA (HOWEVER CAUSED) OR INTERRUPTION IN USE OR AVAILABILITY OF SERVICES OR DATA, IMPAIRMENT OF ASSETS OR OTHERWISE, WHETHER ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY IN TORT OR OTHERWISE, AND WHETHER BASED ON ANY PROVISION OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES RELATING TO THE CLIENT SITE, THE SERVICES OR ANY TRANSACTION PERFORMED OR UNDERTAKEN UNDER OR IN CONNECTION WITH THIS AGREEMENT; AND (ii) THE AGGREGATE LIABILITY OF MAX VELOCITY MARKETING TO CLIENT FOR ANY CLAIM UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY CLIENT TO MAX VELOCITY MARKETING HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING SUCH CLAIM.
8. CHOICE OF LAW AND FORUM; WAIVER OF JURY TRIAL; ATTORNEY’S FEES. This Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any legal action instituted by either party against the other party under this Agreement or otherwise in connection with the Services provided hereunder may be brought in the state or federal courts in Norfolk, Virginia, and the parties hereby consent to such jurisdiction hereunder.
CLIENT and MAX VELOCITY MARKETING WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, COUNTERCLAIM, DISPUTE OR PROCEEDING BASED UPON OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, THIS WAIVER BEING KNOWINGLY AND VOLUNTARILY MADE BY THE PARTIES. CLIENT AND MAX VELOCITY MARKETING ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED BY (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED BY) COUNSEL IN CONNECTION WITH THE SIGNING OF THIS AGREEMENT. Should Max Velocity Marketing prevail in any action against Client to enforce or interpret any provision of this Agreement, Max Velocity Marketing shall be entitled to its costs and actual attorney fees in addition to all other available remedies.
9. CONFIDENTIALITY. Neither party shall disclose to any third party any information that is indicated as proprietary or confidential by the other party, unless required to do so by law or to perform its obligations or exercise its rights under this Agreement.
10. FORCE MAJEURE. Neither party shall be liable for any failure or delay in the performance of all or any portion of its respective obligations hereunder (other than their obligation to pay any monies owed hereunder) resulting in whole or in part from a cause or causes beyond their respective reasonable control, including but not limited to the failure of any subcontractor or other third parties to perform, acts of God or public enemy, fires, flood, storms, earthquakes, riots, strikes, boycotts, lockouts, war, domestic or international terrorist attacks, restraints of government, power or communication line failure, failure of the Internet, telecommunications facilities or third party software programs, ruling or order of any court or agency of competent jurisdiction, or change of law or regulation subsequent to the execution of this Agreement.
MISCELLANEOUS PROVISIONS. The provisions of this Agreement shall bind and inure to the benefit of the parties hereto and their heirs, legal representatives, successors and permitted assigns. Nothing in this Agreement shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other, nor shall either party have authority to bind the other in any respect, it being intended that each shall remain an independent contractor solely responsible for its own actions. This Agreement is not intended to benefit any third party and the parties do not intend to create any third party beneficiary rights under this Agreement. This Agreement shall not be assignable by Client without Max Velocity Marketing’s prior written consent, and any attempted assignment in violation of the foregoing shall be void and of no force and effect; provided, notwithstanding the foregoing, (i) this Agreement shall be assignable without Max Velocity Marketing’s consent to a buyer of all or substantially all of Client’s assets, (ii) unless Client otherwise notifies Max Velocity Marketing in advance, this Agreement shall be and shall be deemed to be automatically assigned to any such buyer of Client’s assets effective upon the closing of such sale transaction, and (iii) this Agreement shall be binding on any such buyer (with such buyer being entitled to receive the Services and liable for all payment and other obligations hereunder) as though it were the original contracting party Failure to exercise any of the rights granted hereunder for any one default shall not be a waiver of the right to exercise any of these rights for subsequent default. All notices provided for in this Agreement shall be in writing and shall be sent by e‑mail, registered or certified mail, express mail, facsimile, or delivered in person to the other party at the address above (in the case of notices to Max Velocity Marketing) or indicated on page one (1) (in the case of notices to Client), or to such other address as may be provided to the other party in the same manner as that provided for giving of any notice, and all notices shall be deemed to have been received on the third (3rd) day after the date said notice was mailed, or twenty four (24) hours following the time of said notice if sent by express mail, email or facsimile, or immediately upon personal delivery. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject matter hereof and may not be changed, except for by an instrument in writing signed by authorized representatives of both parties. Each party acknowledges that it has had the opportunity to review this Agreement with legal counsel of its choice, and there will be no presumption that ambiguities will be construed or interpreted against the drafter. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings with respect thereto. Further, Max Velocity Marketing expressly rejects any terms and conditions of Client that are in addition to or in conflict with this Agreement, regardless of whether such Client terms or conditions are proffered or delivered subsequent in time to this Agreement and/or whether or not they are signed Max Velocity Marketing, and any such additional or conflicting Dealership terms and conditions shall be of no force or effect. In the event any provision or part thereof contained in this Agreement shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The headings in this Agreement are used solely for the purpose of convenience and shall not be deemed to list the subject of any provision or be considered in the construction thereof. Both parties understand that it is their respective obligation to comply with all applicable state, federal and local laws, regulations and guidelines. Signatures may be delivered by facsimile and such signatures will be treated as originals.