SOFTWARE LICENSING & SERVICES AGREEMENT

This Agreement between VITAZA Digital (“Service Provider”) and the Customer (“Customer”) becomes effective upon the Customer’s initiation of payment and/or initial use of the software and services provided by VITAZA Digital. The Customer may utilize services including onboarding, maintenance, support and other custom services from the Service Provider. The parties agree to the following terms and conditions, intending to be legally bound hereby.

1. SOFTWARE LICENSING

1.1. Grant of License: The Service Provider grants the Customer a non-exclusive, non-transferable license to use the software including, but not limited to, features such as CRM integration, marketing automation, payment processing and advanced analytics.

1.2. Usage Rights: The Customer is authorized to use the software for internal business purposes, adhering to the provided documentation and guidelines.

1.3. Restrictions: The Customer shall not modify, distribute, sell, or create derivative works based on the software without the Service Provider’s prior written consent.

2. SERVICE AND SUPPORT

2.1. Scope: In addition to software licensing, the Service Provider offers Onboarding, Maintenance, and Support, as well as Custom Services from time to time. These services available to assist the Customer in setting up and enhancing the Customer’s use of the software. All Services provided under this agreement will be delivered remotely and with a best-effort approach, adhering to Service Provider’s established service level objectives.

2.2. Onboarding Services: Onboarding is an optional services that is an essential component of the recurring services provided to the Customer. The service provider will setup, organize and consolidate the Customer’s digital assets into the service provider’s dashboard, which may include adding VITAZA Digital with administrator access and transferring the Customer’s website to the service provider’s domain hosting. It may also include moving or creating new assets under the Customer’s personal or business Google accounts. The Customer hereby grants the service provider permission to make the necessary changes to the Customer’s digital assets in the course of the Onboarding process.

2.3. Maintenance and Support Services: Ongoing maintenance and support services are included as per the subscribed package, ensuring optimal software performance and utility. These services can be found at https://support.vitazadigital.com.

2.4. Digital Marketing Services: Digital Marketing Services may include other digital marketing services such as website design, website hosting, SEO and social media services. All Services, including new services, changes, modifications, or adjustments, must be formally documented and approved by both parties through a mutually agreed-upon Proposal and/or Change Order process. Verbal or undocumented requests for changes will not be considered valid or binding. This process ensures transparency, clarity, and a shared understanding of any alterations to the scope or terms of the services, promoting effective communication and project management.

3. CUSTOMER RESPONSIBILITY AND COOPERATION

3.1. Timely Response Commitment: Customer acknowledges and agrees that timely and effective performance of services by Service Provider is dependent on Customer’s cooperation and responsiveness. Customer understands that prompt and efficient communication is vital for the successful execution of the Services. Therefore, Customer commits to providing timely responses to requests for information or approvals, ensuring a maximum response time of three (3) business days from the date of receiving a communication from Service Provider.

3.2. Proactive Action: In the event that Customer fails to respond within the specified timeframe, Service Provider reserves the right, in its sole discretion, to proceed forward on Customer’s behalf based on its best judgment and understanding of the project requirements. This proactive action is taken to ensure the continuity, progress, and effectiveness of the services and to prevent any delays or impediments that could negatively impact the desired results.

3.3 Consequences of Non-Responsiveness: Customer further acknowledges that when they fail to uphold their obligation of timely responses, including but not limited to requests for information or approvals, attendance of meetings, provision of access to required systems, or overall non-responsiveness to Service Provider, it may result in a delay, non-performance, or other failure to perform Service Provider’s obligations under this Agreement. In such circumstances, Customer understands and agrees that Service Provider shall be excused from any liability for the consequences of such delay, non-performance, or failure to the extent it is attributable to Customer’s non-responsiveness. Furthermore, if Customer consistently fails to participate and provide the necessary cooperation within the specified timeframe, Service Provider reserves the right to cease and terminate the services. In the event of termination, Customer acknowledges and agrees that all remaining fees are considered forfeited and non-refundable. Customer agrees not to make any negative or disparaging comments or remarks about Service Provider or its products or services, and not to encourage others to do so, whether online or offline, including but not limited to social media platforms, review sites, or other public forums. Any breach of this provision will entitle Service Provider to seek injunctive relief, in addition to any other legal or equitable remedies available to it.

4. FEES & PAYMENTS

4.1. Payment Terms: The Customer agrees to pay fees as subscribed to the software, accepted via proposal and/or as outlined in the Service Provider’s standard pricing guidelines, which may be subject to amendments. Monthly payments are automatically processed.

4.2. Payment Failure: In the event of payment failure, services will be suspended until payment is made. This may include the inability to log into the system, suspension of website hosting, automations and/or other features and capabilities of the system.

4.3. Third-Party Fees: Various third-party apps and services may be hosted through the platform including, but not limited to, telephony services, directory listing services, digital ad services, and are billed independently. These fees are billed independently of licensing services and are non-refundable. Digital advertising spend through the platform is billed independently and passed through to Google, Facebook, or other third-party, and is non-refundable once used, regardless of performance.

4.4. Fee Adjustments: Service Provider reserves the right to review and adjust pricing for custom recurring services with at least 30 days prior written notice outlining any proposed changes to the pricing structure. Customer may choose to accept the new pricing or terminate services. If Customer does not provide written notice of termination within 15 days of receipt of the pricing adjustment notice, the new pricing structure will be deemed accepted by Customer and will take effect upon the next billing cycle.

5. SUBSCRIPTION MODIFICATIONS

5.1. Upgrades: The Customer is entitled to upgrade their subscription at any point. Such upgrades will be implemented immediately, ensuring uninterrupted access to enhanced services.

5.2. Downgrades: The Customer may choose to downgrade their subscription to a lower-tiered plan. Downgrades will take effect at the start of the next billing cycle. The Customer should be aware that downgrading may result in the loss of certain features or capacity.

5.3. Cancellations: The Customer may opt to cancel their subscription at their discretion. Cancellation requests will be processed effectively at the conclusion of the ongoing billing cycle. It is important to note that cancellations do not warrant a refund for any portion of the month already billed or services rendered during that period.

6. TERM, REFUND, CANCELLATION AND TERMINATION POLICIES

6.1 Software Licensing Month-to-Month Term: This Agreement becomes effective upon the Customer’s first payment or upon the Customer’s initial use of the software, whichever occurs first. The Agreement will continue on a month-to-month basis with automatic monthly renewals unless terminated.

6.2. Cancellation and Refund Policy: All services are provided on a prepaid subscription basis, and Service Provider does not issue refunds for Services or partial month payments for Services or Software Licensing.

6.3. Termination by Service Provider: Service Provider may terminate this Agreement for any reason with 30 days’ prior written notice after the Initial Term, without further obligation of either Party except for any outstanding payment obligations hereunder. Termination shall not relieve either Party of any obligations incurred prior to the termination.

6.4. Cancellation or Termination Responsibilities: Upon cancellation or termination, it is the Customer’s responsibility to transfer their data, website and port any phone numbers prior to the end of the cancellation period. It is the Customer’s responsibility to make alternate arrangements for their services upon termination. Customer is responsible for ensuring the transfer or removal of media assets, customer lists, configured features, funnels, websites, and phone numbers before the final cancellation date. If desired, a Customer wishing to transfer actively used phone numbers must initiate a porting request. Once cancellation is processed, all data within the system will be permanently purged, including any purchased phone numbers. The Service Provider agrees to cease all promotions of Customer’s services, cease making Customer’s services available in or through a website or otherwise, and upon request, to promptly destroy or return all copies (electronic or written) of any other confidential or proprietary information in Service Provider’s possession or control. Service Provider shall not be liable for any costs or expenses incurred by Customer as a result of the termination of services. The Service Provider will maintain the Customer’s data for a minimum of 90 days post-cancellation, after which it may be permanently deleted.

7. DATA PRIVACY. SECURITY AND SYSTEM UPTIME

7.1. Data Protection and Privacy: The Service Provider commits to best practice data protection measures within its control, ensuring Customer data is not sold, shared, or co-mingled with that of other customers. This commitment is made within the operational constraints of our underlying platform providers, who are governed by their own policies.

7.2. Data Ownership: Notwithstanding any other provision in this Agreement, the Customer retains full ownership of their data. The Service Provider acknowledges that it does not acquire any rights to the Customer’s data through this Agreement, and any use of Customer data will be solely for the purposes of fulfilling service obligations under this Agreement.

7.3. System Uptime Objective: The Service Provider, through its platform partner, targets a 99.9% system availability, as part of our service commitment.

7.4. Website Hosting: Service Provider’s hosting service provides three (3) days of backups. Service Provider HIGHLY RECOMMENDS that Customer install a backup plugin on their site. We recommend UpdraftPlus—it is free and easy to use. For those with high backup requirements, we recommend a more robust platform like BlogVault or VaultPress.

8. AMENDMENT AND MODIFICATION

8.1 Right to Amend: The Licensor reserves the exclusive right to amend, alter, modify, replace, or revise any part of this Agreement at any time and at its sole discretion. All changes will be effective immediately upon posting or providing notice to the Licensee, unless otherwise stated.

8.2. Notification of Changes: The Licensor agrees to provide reasonable notice of any substantial changes to this Agreement. Notice shall be deemed sufficient if sent to the email address on file for the Licensee or posted clearly within the software or on the Licensor’s website.

8.3. Acceptance of Changes: Continued use of the Software by the Licensee after any such changes shall constitute the Licensee’s consent to such changes. If the Licensee does not agree to the new terms, they should discontinue the use of the Software.

8.4. Review Responsibility: It is the responsibility of the Licensee to review this Agreement periodically for changes. The most current version of the Agreement will supersede all previous versions.

8.5. Severability of Changes: If any change to this Agreement is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes or conditions.

9. LIMITATION OF LIABILITY AND INDEMNIFICATION

9.1. Limited Liability: The Service Provider disclaims all warranties not explicitly stated in this Agreement and limits liability to the extent permitted by law. This limitation particularly applies to data privacy, security performance, and system uptime, acknowledging that the Service Provider does not offer financial guarantees or assume liability for these aspects, especially in relation to third-party platform providers. Except as expressly set forth herein, neither Party makes or hereby disclaims any representations or warranties, express or implied, regarding the products and services contemplated by this agreement, including any implied warranty of noninfringement, merchantability, or fitness for a particular purpose, or any other implied warranties arising from the course of dealing or performance. Service Provider has no control over the policies and practices of third-party companies or social media companies, such as Google, Bing, Facebook, Twitter, Instagram, or similar businesses. Service Provider does not guarantee specific website traffic numbers or first-page search engine rankings for specific keywords due to the dynamic nature of SEO and Digital Ads. CliFent acknowledges that search engine algorithms change regularly which may affect the rankings of the website. Customer acknowledges that Service Provider shall not be held responsible for any event which is out of the scope and responsibility of Service Provider to control or avoid. Customer agrees to assume all risks and responsibilities for all Customer content, photos, social media content, and graphics. Customer also agrees to assume all risks and responsibilities for any content posted to any social media site by Service Provider on Customer’s behalf. If at any time, Customer’s website is excluded from any directory or search engine, Service Provider shall not be held liable for such exclusion. Sometimes, search engines drop listings for no apparent reason, and Service Provider shall not be held responsible for such dropped listings of Customer’s website.

9.2. Mutual Indemnification: The Parties mutually agree to indemnify, defend, and hold each other (including its directors, officers, employees and agents) harmless from all costs, expenses including reasonable attorney’s fees, losses, damages, or liabilities incurred insofar as such costs, expenses, losses, damages or liabilities are based on a claim that Service Provider’s technology or marks infringes any intellectual property rights of a third party. The indemnified Party shall provide the indemnifying Party with prompt written notice of any such claim. The indemnifying Party shall have sole control and authority with respect to the defense and settlement of any such claim. The indemnified Party shall cooperate fully with the indemnifying Party, at the indemnifying Party’s sole cost and expenses, in the defense of any such claim. The indemnifying Party shall not agree to any such claim that does not include a complete release of the indemnified Party from all liability with respect thereto or that imposes any liability, obligation or restriction on the indemnified Party without the prior written consent of the indemnified Party. The indemnified Party may participate in the defense of any claim through its own counsel and at its own expense.

10. CONFIDENTIALITY

10.1. Confidentiality Commitment: Both Parties agree to protect the confidentiality of information, including details about their organization, business, finances, personnel, services, systems, and proprietary processes, solely for fulfilling obligations under this Agreement. Confidential Information does not include data already public or known to the party independently. The parties commit to using this information only as necessary for this Agreement and to keeping it confidential, with reasonable care to prevent unauthorized disclosure. This confidentiality obligation will continue even after the Agreement’s termination.

11. BRANDING AND PROMOTIONAL USE

11.1. Use of Logo: Customer grants Service Provider permission to use its name, logo and/or trademark for certain promotional materials that Service Provider may distribute to the public. These materials may include, but are not limited to, brochures, videos, websites, press releases, newspaper and/or periodical advertisements, lucites, and any other materials that relate to the marketing relationship between Customer and Service Provider. Customer acknowledges that Service Provider may use these materials without seeking Customer’s approval. Service Provider is not obligated to use Customer’s name, logo and/or trademark in any promotional materials.

11.2. Publicity: Public announcements that mention the other party as a customer or strategic marketer may be made without the other party’s review and approval. However, all other public and promotional announcements or press releases related to the relationship set forth in this Agreement shall be done in cooperation with the other Party and are subject to prior review and approval, which shall not be unreasonably withheld or delayed.

12. GENERAL PROVISIONS

12.1. Notices: All notices that either Party is required or may desire to serve upon the other Party shall be in writing and addressed to the Party to be served at the respective addresses set forth herein and shall be sent via U.S. Express Mail or private express courier service with confirmed receipt and will be effective upon receipt at the addresses listed herein (unless the Parties are notified in writing of a change in address, in which case notice will be sent to the new address).

12.2. Entire Agreement: This Agreement constitutes the entire understanding and agreement between the parties with respect to the transactions contemplated and supersedes all prior or contemporaneous oral or written representation, understanding, agreement or communication between the Parties concerning the subject matter hereof. Neither Party is relying upon any warranties, representations, assurances, or inducements not expressly set forth herein.

12.3. Waiver: No waiver of any provision of this Agreement or any rights or obligations of either Party hereunder shall be effective, except pursuant to a written instrument signed by the Party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.

12.4. Force Majeure: If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

12.5. Headings: The section and paragraph headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, govern, limit, modify or construe the scope or extent of the provisions of this Agreement to which they may relate. Such headings are not part of this Agreement and shall not be given any legal effect.

12.6. Amendments and Severability: No amendment or modification of this Agreement, nor any waiver of any rights, will be effective unless assented to in writing by the party to be charged, and the waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default. If any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained shall not, in any way, be affected or impaired thereby.

12.7. Independent Contractor: Neither Party is an agent, representative or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, joint venture, partnership, franchise, sales, representative or employment relationship between the Parties or to impose any partnership obligation or liability upon either Party. Each Party shall bear its own costs and expenses in performing this Agreement.

12.8. Representations and Warranties: Each Party represents and warrants to the other that it has the full corporate right and authority to enter into this Agreement and to perform the acts required of it hereunder. Each Party represents and warrants that the execution of this Agreement by such Party and the performance by such Party of its obligations and duties hereunder do not and shall not violate any other Agreement to which such Party is a Party or by which it is otherwise bound. Each Party represents and warrants that when executed and delivered by such Party, this Agreement shall constitute the legal, valid and binding obligation of such Party, enforceable against such Party according to its terms. Each Party acknowledges that the other Party makes no representations, warranties or Agreements related to the subject matter hereof that are not expressly specified in this Agreement.

12.9. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to conflicts of laws or choice of laws rules. All legal actions relating to this Agreement shall be brought in the state or federal courts located in the State of Florida.

12.10. Construction: In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any provision is held invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties, and the remainder of this Agreement shall remain in full force and effect. There shall be no presumption for or against either Party as a result of such Party being the principal drafter of this Agreement.

12.11. Agreement Acceptance: By initiating payment for software licensing and/or services, you affirm that you have the authority to represent your company and thereby consent to and accept all terms and conditions outlined in this Agreement. By using the software, you further affirm your acceptance of these terms and conditions.