Terms of Service

1. Governing Provisions

These Terms and Conditions (“Conditions”) govern the Services described on the ordering sheet to which they are attached (“Order”) for the Services identified on the Order. The Order and these Conditions together form the entire agreement between Customer and ViziSites, and supersede all prior agreements and understandings between Customer and ViziSites, whether written or oral, with respect to the Services.

a. Services: ViziSites will perform the Services in accordance with this Agreement. ViziSites performance of Services is conditioned upon Customer’s Cooperation. Customer agrees to cooperate with ViziSites by providing: (i) timely responses to ViziSites inquiries; (ii) prompt review and approval (where necessary) of all documents and content; (iii) access to any information or materials reasonably requested by ViziSites which are necessary or useful in connection with providing the services under this Agreement. Customer acknowledges and agrees that the Services are dependent upon the timeliness, completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or personnel engaged or appointed by Customer to work with ViziSites.

2. Website and Support

a. ViziSites will provide a website architecture that is optimized for the major search engines: Google, Yahoo and Bing. However ViziSites cannot guarantee specific placement within any engine. The ViziSites Internet Marketing Consultant assigned to the project can provide additional consultation on search engine optimization strategies to enhance the ranking of Customer’s website.

b. ViziSites will provide different website designs from which to choose. Website appearance will be tailored to Customer’s business including layout, color schemes and images. ViziSites Inc. will customize elements of the website to be unique to Customer’s business. If Customer has an existing website, ViziSites will transfer the content and categories owned by Customer to the new website, and in some cases will provide extra industry specific content. ViziSites will not be held liable for transferring content Customer does not own. All content will be approved by Customer prior to launching new website.

c. ViziSites will make updates to the website as needed, and Customers wishing to modify content must contact ViziSites with all requests. Requests must be emailed to service@vizisites.com. Most requests will be fulfilled at no additional charge (such as adding or deleting content, uploading pictures, promos, etc.), however if Customer wishes to have extensive custom work done or labor intensive features/additions to the website, then additional charges may be incurred which will be disclosed prior to modifications being made.

d. Administrative Access and Liability: To ensure the technical integrity, security, and Search Engine Optimization (SEO) performance of the Website, ViziSites maintains exclusive administrative backend access for all SEO-managed service packages. Customer acknowledges that the Website backend is a highly sensitive environment where unauthorized modifications can result in critical data loss, broken site architecture, or severe search engine penalization. ViziSites reserves the right, in its sole discretion, to determine whether direct access will be provided. Should access be granted at Customer’s insistence contrary to ViziSites’ recommendation, ViziSites shall not be liable for any loss, decline in rankings, traffic reduction, data loss, site errors, security incidents, or other damage arising from edits made by the Customer or third parties. Any labor required by ViziSites to repair damages caused by such access will be billed to the Customer at our current hourly technical rate.

3. Domain Name and Hosting

If Customer has an existing website/domain, ViziSites will assist in the domain transfer process and change Customer domain to ViziSites hosting through a 3rd party vendor. Domain will be transferred into ViziSites control for management. If Customer does not yet have a domain name, ViziSites will assist in selecting a suitable domain name, and register the domain on behalf of Customer. The cost to Customer for a domain name can range from $20-$50 per year on average and is based on the current domain rates set by domain companies such as GoDaddy, eNom, etc. Customer is charged the current domain rate on an annual basis. Customer further acknowledges and agrees to grant ViziSites with continuous control of Customer’s Domain while Customer receives website services from ViziSites. Customer’s failure to provide such control may prevent Customer’s website from being operational. ViziSites will not be responsible for any loss or damage incurred due to Customer’s failure to provide ViziSites with control of the Domain.

4. Additional Terms for Specific Services

4.1 Advanced Web Marketing

a. Aimed at driving additional qualified traffic to Customer’s business and related web assets, Customer grants ViziSites permission to create and submit content on Customer’s behalf to press release news outlets, directories, search engines, paid online advertisers, social media outlets, and other web-based destinations. Social Media content in the form of posts will be submitted multiple times each week to Facebook, Twitter and other social outlets to encourage brand awareness within the Customer’s local market.

b. Any contract or transaction completed via any third-party website (e.g., Facebook, Twitter) is between Customer and the third party, and not ViziSites. ViziSites recommends that Customer refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.

4.2 Listing Service

ViziSites may offer a complimentary listing service (the “Listing Service”) under which Customer’s business information and client and/or patient reviews (collectively, “Customer Business Information”) are submitted to search engines, indexes, and other third-party websites (collectively, “Third-Party Websites”). Customer agrees: (a) to participate in the Listing Service; and (b) to allow ViziSites to submit and register Customer Business Information with Third-Party Websites. We do not guarantee the acceptance of such submissions by Third-Party Websites. Customer may request in writing to remove Customer Business Information from websites that are controlled by us; provided, however, that we are not obligated to request Third-Party Websites to remove such Customer Business Information. Additional tools may be made available by Third-Party Websites to Customer and we will not be responsible for any loss or damage arising out of Customer’s use of such tools.
If Customer cancels its subscription to the Services, we may remove Customer Business Information from websites controlled by us. We reserve the right to terminate the Listing Service, at any time, for any reason or no reason.

4.3 Directory Services

ViziSites may include Customer Directory Information (as defined below) in ViziSites: (a) Public Provider Directories, which are electronic directories for patients and the general public; and (b) Professional Provider Directories, which are directories for Providers and other members of the healthcare community (collectively, “Provider Directories”). Provider Directories may be made available in various electronic formats, including searchable databases, Provider landing pages, interactive reference tools, and integrated look-up features, among others. They may also incorporate information designed to help users, such as integrated maps, and licensure confirmation tools, among others. Provider Directors may include a “contact” feature that allows users to contact other users directly. Our Public Provider Directory may be made available to public search engines. Listing in the Provider Directories is subject to eligibility criteria. If Customer meets the applicable criteria, some or all of Customer’s Directory Information will be automatically included in the applicable Provider Directories, unless Customer informs ViziSites in writing that Customer wishes to be excluded. In addition, unless Customer inform us in writing that Customer wishes to be excluded from the Provider Directories, ViziSites may provide Customer’s Directory Information and Customer’s patients’ reviews of your services to our third-party partners who may include Customer’s Directory Information and the patient review information on their websites.

“Customer Directory Information” includes the Customer’s name, names of physicians or other healthcare professionals associated with a Customer, associated specialties, Customer’s business telephone numbers and physical addresses, and the Customer’s available appointment slots, as each is indicated from information a Customer has inputted or imported into the Services. Customer Directory Information may include additional information you input or upload into profile tools we make available through the Services. Upon termination of this Agreement by either party, the Customer Directory Information and any consumer reviews may remain in any data feeds provided to third-parties but is subject to removal at any time as determined by ViziSites. Notwithstanding the foregoing, ViziSites is not a referral service and does not recommend or endorse any particular customer. ViziSites may use proprietary processes and algorithms to select, compile and adjust certain data to generate ratings. Ratings compiled are opinion and not statements of fact.

4.4 Video Services

Customer may be subject to an additional fee for Video Services and a minimum Term commitment may be required. A cancellation fee may apply if Customer cancels a scheduled shoot with less than forty-eight (48) hour prior notice. Customer must approve all videos via an online preview system. Customer will be deemed to have approved of the videos if Customer fails to provide approval, via the online preview system, within five (5) business days from the date that the video was available for preview.

Customer will be subject to an additional fee should the 2-hour shoot limit be exceeded, at the rate of $250 per half hour. Additional fees may apply should Customer have a need for additional lighting kit, raw footage preview, priority turnaround, additional shooting, additional edit length, and/or additional revisions.

The videos are the sole and exclusive property of ViziSites. During the Term of this Agreement, ViziSites grants to Customer a revocable, non-exclusive, non-transferable license to publicly perform and publicly display the videos solely for Customer’s own business purposes.

4.5 Google Ads Service

a. Customer acknowledges that Google Ads is a third-party online advertising platform owned and operated by Google. Customer’s advertisements will target the geographical location(s) and advertising objectives specified by Customer. If Customer does not specify keywords or other campaign settings, ViziSites shall select keywords and configure the campaign in its professional judgment based upon Customer’s business, services, geographic targeting, advertising objectives, and available data.

Customer acknowledges that Google determines ad eligibility, ad rank, ad position, impression frequency, quality score, and other campaign performance factors using proprietary algorithms that may change at any time without notice. ViziSites has no control over Google’s algorithms, advertising policies, platform functionality, pricing, or enforcement decisions. Campaign performance may be affected by factors outside ViziSites’ control, including but not limited to competitor activity, market conditions, seasonality, customer reviews, website performance, landing page quality, Customer’s products or services, pricing, availability, responsiveness to leads, changes in search behavior, and modifications made by Google or third parties.

ViziSites does not guarantee any specific ad position, impression volume, click-through rate, number of clicks, leads, conversions, appointments, sales, revenue, return on investment, or other business results. Customer acknowledges that digital advertising involves uncertainty and that past performance is not indicative of future results.

b. In connection with Google Ads management, ViziSites will use commercially reasonable efforts to manage Customer’s campaigns in accordance with Google’s then-current advertising policies. Customer acknowledges that Google may reject, suspend, restrict, remove, or terminate advertisements or advertising accounts at its sole discretion, and ViziSites shall not be responsible for any such action.

Customer is solely responsible for ensuring that its advertisements, website content, products, services, promotions, claims, and business practices comply with all applicable laws and regulations. ViziSites will not knowingly authorize any party to generate automated, fraudulent, or otherwise invalid impressions, inquiries, clicks, or conversions.

c. Google Ads Management Fees and Advertising Spend: Customer shall pay ViziSites the Google Ads setup, optimization, management, and other service fees specified in the applicable Order at the beginning of each service period. These amounts are fees paid solely to ViziSites for its professional services and do not include Customer’s Google Ads advertising budget, media spend, cost-per-click charges, or any other amounts charged by Google.

Customer’s advertising spend is separate from all fees paid to ViziSites and will be charged directly by Google to the payment method associated with the applicable Google Ads account. Customer authorizes Google to charge that payment method in accordance with Google’s billing practices, which may include charges made periodically, upon reaching billing thresholds, or at other intervals determined by Google.

Customer acknowledges that the total amount charged in connection with the Google Ads Service will ordinarily include both: (i) fees charged by ViziSites for campaign setup, optimization, and management; and (ii) separate advertising charges imposed by Google based on Customer’s approved advertising budget and actual campaign activity.
Customer is solely responsible for all advertising spend and other charges imposed by Google. ViziSites does not collect, control, or include Google advertising spend within its management fees unless expressly stated otherwise in a written Order signed by ViziSites.

If payment of ViziSites’ fees cannot be successfully processed, ViziSites may suspend campaign management services and pause advertising until all amounts owed to ViziSites have been paid. If Google is unable to process Customer’s advertising charges, Google may pause or restrict the campaigns or advertising account. ViziSites shall not be responsible for any interruption, loss of traffic, leads, campaign performance, or other impact caused by Customer’s failure to maintain a valid payment method or pay amounts owed to either ViziSites or Google.

d. Customer may terminate ViziSites’ Google Ads management services by providing notice of cancellation. Termination shall become effective at the end of the then-current service period, at which time ViziSites will cease providing Google Ads management services and Customer will not be billed for future service periods unless a new service order is executed.

e. Campaign Ownership and Termination. All Google Ads campaigns, campaign structures, keyword research, keywords, ad copy, headlines, descriptions, creative assets, audience targeting, bidding strategies, conversion tracking configurations, negative keyword lists, custom audiences, optimization methodologies, account organization, data compilations, and all other advertising strategies, materials, and campaign assets created, developed, or substantially modified by ViziSites (collectively, the “Campaign Assets”) are proprietary works and the exclusive intellectual property of ViziSites, regardless of whether such Campaign Assets are created within a Google Ads account owned by ViziSites, Customer, or any third party.
Customer purchases Google Ads management services and is granted a limited, revocable, non-exclusive, non-transferable license to use the Campaign Assets solely while ViziSites is actively providing Google Ads management services under this Agreement. No ownership rights in the Campaign Assets are transferred to Customer.

Upon termination or expiration of Google Ads management services for any reason, Customer’s license to use the Campaign Assets immediately terminates. ViziSites shall have no obligation to transfer, assign, export, duplicate, provide, or otherwise make available the Campaign Assets, or any copies thereof, to Customer or any successor agency. Where Campaign Assets reside in an account owned or controlled by ViziSites, they shall remain the exclusive property of ViziSites and will not be transferred upon termination. Where Campaign Assets reside within an account owned by Customer, ViziSites reserves the right, to the extent permitted by applicable law and this Agreement, to remove or withdraw its Campaign Assets following termination.

f. THE GOOGLE ADS PROGRAM IS PROVIDED BY GOOGLE. VIZISITES, GOOGLE, AND THEIR RESPECTIVE AFFILIATES, PARTNERS, AND SERVICE PROVIDERS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE AVAILABILITY, PERFORMANCE, OR RESULTS OF THE GOOGLE ADS PROGRAM. VIZISITES DOES NOT GUARANTEE ANY SPECIFIC AD POSITION, IMPRESSION VOLUME, CLICK-THROUGH RATE, LEAD VOLUME, CONVERSION RATE, RETURN ON INVESTMENT, REVENUE, OR ANY OTHER BUSINESS RESULT.

g. Customer Responsibilities. Customer shall promptly provide all information, approvals, access credentials, advertising materials, trademarks, logos, and other content reasonably requested by ViziSites. Customer is solely responsible for the accuracy, completeness, legality, and timeliness of all information and materials supplied to ViziSites. Any delay caused by Customer may delay campaign implementation or adversely affect campaign performance, and ViziSites shall not be responsible for such delays or impacts.

Customer acknowledges that any modifications to campaign settings, budgets, keywords, bidding strategies, advertisements, conversion tracking, audiences, landing pages, or other campaign configurations by Customer or any third party may adversely affect campaign performance. ViziSites shall not be responsible for the results of any changes made by persons other than ViziSites and reserves the right to charge its then-current hourly rates to diagnose, correct, or restore campaigns impacted by such changes.

Unless Customer provides specific written instructions to the contrary, ViziSites shall have sole discretion regarding campaign structure, bidding strategies, keyword selection, match types, negative keywords, audience targeting, ad copy, scheduling, geographic targeting, and other optimization decisions consistent with Customer’s advertising objectives.

h. In no event shall ViziSites, including its employees, affiliates, subcontractors, or third-party service providers, be liable for any indirect, special, incidental, consequential, punitive, or exemplary damages, including without limitation damages relating to loss of profits, revenue, business, goodwill, data, or advertising opportunities, arising out of or relating to this Agreement or the services provided hereunder.

ViziSites shall not be liable for any interruption, suspension, account restriction, account termination, policy enforcement action, algorithm change, pricing change, platform modification, or other action or omission by Google or any other third-party platform.

ViziSites shall not be responsible for any reduction in campaign performance resulting from modifications made by Customer or any third party, changes to Customer’s website or landing pages, changes to Customer’s products, services, pricing, availability, business operations, or any other circumstances beyond ViziSites’ reasonable control.

5. Payments

a. For the initial term of each Order, Customer will pay ViziSites the fees identified in the Order, and Customer hereby irrevocably authorizes ViziSites to charge the credit, debit, or bank account provided for any such amounts when due each month. Initial payment is due on the effective date. Amounts due will be automatically charged and are not refundable. Customer is responsible for having sufficient funds in the account to be charged. ViziSites holds the right to suspend Service due to non-payment by Customer.

b. Unless special payment arrangements have been indicated in the Order, the initial investment will be collected upon execution of this agreement. If Customer is on a 12 month contract and not a Month-to-Month payment arrangement, there will be an early termination fee should Customer cancel prior to making 12 recurring payments on the monthly service package. The early termination fee is equal to 3 months of the monthly recurring fee, or $1000, whichever is greater.

c. A rush fee of $499 will be charged if Customer wishes to have a templated landing page launched in as early as two weeks. Customer understands the landing page is not a custom design, however will be personalized for the Customer, with logo, branded colors, name, and business information. The fee allows ViziSites to rush the order and make it priority so that Customer can receive a live landing page much faster than the normal website build time.

d. ViziSites reserves the right to modify the Fees at any time upon notice (provided that prior notice will not be required if pricing increases are due to domestic rate changes or other events beyond ViziSites control), and such changes or modifications may be provided by an email message to Customer.

e. If Customer wishes to cancel: After fulfilling any applicable minimum service term, Customer may terminate the Services by providing written notice of cancellation, identifying the requested termination date, and completing a required offboarding call at least five (5) business days before the next scheduled payment date.
The offboarding call must include the individual designated by Customer as its primary account contact during the service relationship, the individual who signed the applicable Service Order, or an owner or senior executive of Customer’s business. Customer may not designate a different employee or representative to satisfy this requirement without ViziSites’ prior written approval. Participation by another staff member who was not substantially involved in the original decision to purchase the Services or in managing the relationship with ViziSites during a material portion of the service term will not satisfy the offboarding requirement.

6. License

a. Customer grants ViziSites a nonexclusive, worldwide royalty-free license to (a) use, reproduce, distribute, modify, perform and display Customer Content for providing the Services, (b) use Customer’s trademark, name and logo in providing the Services, and (c) list, represent, register or establish accounts in connection with providing the Services. ViziSites may monitor any and all use of the Services and gather system data for the purpose of optimizing Services.

b. Customer hereby grants ViziSites the right to place the ViziSites name and hyperlink in the footer of Customer’s website.

7. Third-Party Services and Websites

The Services may include third-party software, services, and websites (collectively, “Third-Party Sites and Services”), which may require Customer to enter into separate subscription or licensing agreements with certain third-party providers. Customer acknowledges and agrees, upon request, to execute and comply with any agreements that may be required for the use of such Third-Party Sites and Services.

The Services may require Customer to provide access to or login information for Third-Party Sites and Services. By providing access to and/or login information for Third-Party Sites and Services, Customer acknowledges and agrees that Customer (a) has read all licenses and written agreements governing such access and/or login information; and (b) has all the necessary contractual and legal rights to provide such access and/or login information. Third-Party Sites and Services may be subject to the applicable third-party provider’s terms of service and other policies, and Customer is solely responsible for reviewing and complying with any such terms of service and/or policies.

ViziSites will not be responsible for any loss or damage incurred as a result of Customer’s use of Third-Party Sites and Services, regardless of whether Customer was directed by ViziSites to such third-party software and services. References made by ViziSites to Third-Party Sites and Services shall not be construed as ViziSites approval or endorsement of such Third-Party Sites and Service.

8. Customer Data

8.1 Ownership of Customer Data

Customer shall retain all right, title, and interest to patient and/or client data and other information and content through the Services (collectively, “Customer Data”), subject to ViziSites right to use Customer Data for the purposes of providing the Services to Customer. Customer further grants ViziSites the right to receive, process, disclose, and transfer Customer Data for additional business purposes, provided that when processing such Customer Data for purposes unrelated to the Services, the Customer Data shall be de-identified so that it is not identifiable to any particular patient and/or client of Customer, but may be identifiable to Customer’s practice.

Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to the use of Customer Data, submitted, posted, transmitted or made available through Customer’s use of the Services. Customer acknowledges and agrees that ViziSites does not control Customer Data nor does ViziSites guarantee the accuracy, integrity, security, or quality of such Customer Data. ViziSites will not be liable for: (a) the deletion, correction, destruction, damage, loss, or failure to store any Customer Data; or (b) the improper or erroneous upload or extraction of any Customer Data.

8.2 ViziSites Use of Protected Information

The Services may include use of Customer Data that consists of protected information, including but not limited to, Protected Health Information under HIPAA. Customer retains all right, title, and interest in such protected information and ViziSites will only use such protected information as expressly permitted in this Agreement, the Business Associate Agreement, and/or the Data Processing Addendum.

9. Monitoring Customer Conduct and Data

ViziSites may, but is under no obligation to, monitor Customer Data created using our Services. ViziSites may disclose information necessary or appropriate to satisfy our legal obligations, protect our rights or the rights of our other customers, or operate the Services properly and securely. ViziSites, in its sole discretion, may refuse to post, remove, or require Customer to remove, any Customer Data alleged to be illegal, infringing, unacceptable, undesirable, inappropriate, or in violation of this Agreement. ViziSites may, in its discretion, also require Customer to place all or any portion of Customer Data behind password protection. If ViziSites requests that Customer place any Customer Data behind password protection and Customer fails to do so, ViziSites may (a) place such Customer Data behind password protection, or (b) immediately terminate this Agreement.

ViziSites reserves the right to withhold, remove, and/or discard Customer Data without notice as a result of Customer’s breach of this Agreement.

10. Customer’s Responsibility for Patient Information, Hosted Websites, and Transmitting Messages

10.1 Patient Information

The Services provided may enable Customer to upload and store patient information to a site hosted by ViziSites (the “Hosted Site”). State and Federal laws, as well as ethical and licensure requirements of Customer’s profession, may impose obligations with respect to patient confidentiality that may limit Customer’s ability to make use of certain Services or to transmit certain information to third parties. Customer represents and warrants that Customer will comply with all applicable laws, rules, and regulations that govern the collection, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of patient information and will use its best efforts to cause all persons or entities under Customer’s direction or control to comply with such laws. Customer is solely responsible for obtaining, maintaining, and verifying that Customer has obtained and is maintaining all patient consents and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view patient information that Customer transmits, processes, and stores in connection with the Hosted Site and the Services. Customer agrees that ViziSites, its licensors, and all other persons or entities involved in the operation of the Services, have the right to monitor, retrieve, store, and use patient information in connection with the operation of the Services, and is acting on Customer’s behalf in transmitting patient information.

VIZISITES CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR CUSTOMER’S USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, UPLOADED, OR STORED USING THE HOSTED SITE OR THE SERVICES. CUSTOMER AGREES TO INDEMNIFY VIZISITES, ITS PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS, AND AFFILIATES FROM ANY CLAIM, ACTION, OR CAUSE THAT MAYBE BROUGHT AGAINST CUSTOMER IN THE EVENT THAT PATIENT INFORMATION IS COMPROMISED DUE TO ITS NEGLIGENCE OR FAILURE TO SECURE IDS.

10.2 Terms of Use and Privacy Policy on the Hosted Site

Customer is responsible for having certain policies, including but not limited to a Terms of Use and a Privacy Policy, in the Hosted Site. The Terms of Use must designate ViziSites as third-party beneficiary and must, at a minimum, contain: (a) ownership of intellectual property, (b) limitations of liability, (c) disclaimers of warranty, and (d) indemnification provisions each for the benefit of ViziSites and that are at least as favorable to ViziSites as contained in this Agreement. The Privacy Policy must, at a minimum: (a) disclose any and all uses of personal information that you collect from users; and (b) include a description of the collection and use of Customer Data.

10.3 Consent to Transmit Messages

Customer may use the Services to use or transmit Customer Data or direct the Services to make contacts via any channel (in either case, “Messages”) to, or with, recipients of the Messages (the “Recipients”). Customer is solely responsible for securing any and all consents or authorizations from Recipients that may be required by applicable law including for transmitting Messages through the Services.

For the avoidance of doubt, in Customer’s use of the Services, Customer represents and warrants that:

a. Customer has the legal right to use all Customer Data and to send all Messages to Recipients (after obtaining appropriate consents from Recipients) and the content, timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations, including, but not limited to, HIPAA, the GDPR, the ePrivacy Directive, the Telephone Consumer Protection Act and implementing regulations at 47 CFR Part 64, Subpart L, (collectively, “TCPA”), the CAN-SPAM Act of 2003 (“CAN-SPAM”), and the Canadian Anti-Spam Law (“CASL”).

b. Customer has obtained all required consents and/or authorizations, as may be required by HIPAA, the GDPR, the ePrivacy Directive, the TCPA, CAN-SPAM, CASL, or other applicable law or regulation, prior to using Customer Data. Customer will not transmit or allow to be transmitted any Customer Data or Messages for which Customer does not have legally sufficient consent or authorization from Recipient.

c. Customer has implemented policies and procedures to honor a Recipient’s request to opt-out of any Messages, campaign, or program transmitted by Customer through the Services.

d. In the event that a Recipient notifies Customer that he or she has revoked his or her consent or authorization, as may be required for Customer to transmit Messages through the Services, Customer shall immediately cease to utilize the Services to transmit Messages to such Recipient and implement any and all steps that are required to deactivate any script or automated delivery of Messages scheduled to be sent to such Recipient.

10.4 Use of the Service to Transmit Messages

Customer acknowledges and agrees that Customer is the transmitter of all Customer Data and Messages and ViziSites is merely acting at Customer’s direction as a technology conduit for the transmission of such Customer Data and Messages and that ViziSites assumes no responsibility or liability relating to or arising from Customer’s practices for obtaining legally-sufficient consents for use of Customer Data and transmission of Messages.

11. Customer Products and Services

The Services may allow Customer to sell Customer’s goods and services (such goods and services, the “Customer Commercial Products”). ViziSites is merely providing the platform for buyers and sellers to negotiate and complete transactions for these Customer Commercial Products. When a buyer purchases Customer Commercial Products, payments will be processed through a third-party service provider. Such payments are entirely governed by the third- party provider’s terms of service and privacy policy. ViziSites is not responsible for the actions of these third-party service providers.

In offering Customer Commercial Products, Customer represents and warrants that:

a. Customer Commercial Products comply with all applicable laws, rules, and regulations; items identified as “not for sales and/or distribution within the United States” may not be sold using the Services;

b. Customer Commercial Products (i) do not infringe, or have the potential to infringe, the intellectual property, proprietary, or privacy rights of a third-party; and (ii) are not libelous, slanderous or otherwise defamatory.

c. Customer will not use the images, names, or the likeness of any third-party when offering or selling Customer Commercial Products without first obtaining all required consents and authorization from such third-party;

ViziSites may immediately remove content related to the offer or sale of Customer Commercial Products in violation of this Agreement.

12. Call Recording

ViziSites may record: (a) calls between Customer and ViziSites agents and/or employees regarding the Services, including for purposes of providing technical support (“Service Calls”); and (b) incoming calls, on Customer’s behalf as a Service, including but not limited to, calls from Customer’s prospective clients (the “Inbound Calls” and, collectively with Service Calls, “Call Recording”). Customer consents to Call Recording and acknowledges that Customer is solely responsible for providing and/or obtaining all legally required notices and consents from its agents, employees, patients, and customers who may be recorded in a Service Call or Inbound Call (the “Recorded Persons”). Customer agrees to provide and/or obtain all legally required notices and consents from the Recorded persons and to comply with all applicable laws, rules, and regulations regarding call recording, monitoring, and privacy. Customer shall assume all responsibility and liability for Call Recording, including any preclusion of the applicability of a privilege (including, but not limited to, doctor-patient or attorney-client privilege) with respect to information from Recorded Persons collected during the Call Recording.

13. Ownership

ViziSites solely and exclusively owns the website until ownership is transferred to Customer. Unless otherwise noted, there is a minimum of 12 monthly payments required for Customer to obtain ownership of the website. Website ownership excludes ViziSites community content and any plugins used by ViziSites to manage the website.

If Customer obtains a complimentary or discounted redesign (an overhaul of their existing ViziSites website), the following conditions would apply: For Customers who have upgraded to a higher-tier package in exchange for the redesign service, they agree to make a minimum of six (6) monthly payments at the upgraded rate. They understand and acknowledge that legal ownership and rights to the newly redesigned website shall only be transferred to them upon completion of these six (6) contractual payments. For Customers who have not upgraded their monthly package in exchange for a complimentary redesign, but were granted a free redesign, they are required to meet their regular monthly payment obligations for a period of twelve (12) consecutive months before they can claim the ownership rights to the redesigned website.

14. Website Accessibility

ViziSites aims to make its websites accessible to all visitors (including users who have visual or other disabilities that could have an impact on their browsing experience). Customer understands that ViziSites has adapted the Worldwide Web Consortium Web Content Accessibility Guidelines version 2.2, Level AA Conformance as its goal. ViziSites is committed to making a good faith effort to meet the below standards on all its hosted websites:

a. Perceivable (able to be viewed and read)

b. Operable (able to be browsed)

c. Understandable (predictable and easy to use)

d. Robust (compatible with as many browsing methods as possible)

ViziSites is continually implementing the latest website features which will improve the browsing experience of all visitors.

15. Terms of Use

a. ViziSites reserves the right to discontinue Services for any reason including, but not limited to: Customer content and/or Customer requests to publish private, illegal, defamatory, obscene, slanderous or inappropriate materials, fraud, copyright infringement, or non-payment of services.

b. Although rare, for websites that use an unusually high amount of server resources (over 500MB of server storage) there will be an additional monthly charge (every 500MB will have a surcharge of $2.50 per month). The majority of our websites consume less than 500MB of space.

c. Due to the rapidly evolving nature of internet marketing, ViziSites reserves the right to change third party vendors, web marketing solutions and systems without notice to allow for better service performance.

d. ViziSites may monitor any and all use of the Services and gather system data for the purpose of optimizing the Services. ViziSites will not disclose this data to any third party in any manner that specifically identifies Customer.

e. Customer warrants that it has the right to grant the above license to ViziSites, and has acquired all third party clearances, consents and licenses necessary in connection with ViziSites performance of Services, that Customer content is true and accurate and does not violate any law or regulation and is not misleading, defamatory, libelous or slanderous, that ViziSites use of Customer Content in providing the Services will not infringe or violate third party rights, that the Customer website and its content will not contain any material that is obscene, pornographic, profane, fraudulent, libelous or defamatory, and will not infringe or violate the rights of any third party.

f. Any information submitted by Customer to ViziSites by mail, email, or entered through the administration system should be a backup or copy of the original. ViziSites is not responsible for loss, damage or liability arising out of Customer’s use of Services or loss of Services regardless of cause (including but not limited to hardware failure, network outage, or other cause beyond ViziSites reasonable control), or relating to Customer Content.

g. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS”. VIZISITES MAKES NO WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. VIZISITES DOES NOT WARRANT SERVICES WILL BE ERROR-
FREE, OR PROVIDED WITHOUT INTERRUPTION.

h.Customer will indemnify and hold harmless ViziSites from all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable attorneys’ fees) relating to or arising from Customer Content, Customer’s website, Customer’s use of the Services, Customer’s breach or alleged breach of its representations or warranties, Customer’s imagery infringement, and/or Customer’s violation of laws, rules or regulations.

i. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIZISITES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR LOST PROFITS, LOST REVENUE, LOST BUSINESS, LOST GOODWILL, LOST DATA, OR LOSS OF BUSINESS OPPORTUNITY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

VIZISITES’ AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO VIZISITES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

16. Governance

This Agreement is governed by the laws of the State of California, excluding its conflict of laws principles, and the exclusive venue for any dispute relating to the Agreement shall be San Diego, California, and the parties hereby waive any jurisdictional, venue or inconvenient forum objections. This Agreement may be amended only in a writing signed by both parties. If one or more of these provisions are held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall be unimpaired. No waiver of any breach of this Agreement is a waiver of any other breach or subsequent breach.