First Buzz Media: Terms and Conditions for SMS Communication:

1. Users can expect to receive the following kinds of messages when they opt in to SMS communication:

• appointment confirmations and links
• account information
• product information
• marketing messages
• help requests
• webchat widget responses
• plus opt-in and opt-out confirmations

2. You can cancel the SMS service at any time. Just text “STOP” to the short code. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time (or text “START”) and we will start sending SMS messages to you again.

3. If you are experiencing issues with the messaging program you can reply with the keyword “HELP” for more assistance, or you can get help directly at info@firstbuzzmedia.com.

4. Carriers are not liable for delayed or undelivered messages

5. As always, message and data rates may apply for any messages sent to you from us and to us from you. You will receive about 10 SMS messages per month. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.

6. If you have any questions regarding privacy, please read our privacy policy: Link to Our Privacy Policy.

First Buzz Media: Terms and Conditions for Services

This Services Agreement (this “Agreement”) explains the obligations of First Buzz Media, and your obligations to First Buzz Media, on behalf of you or your organization (hereinafter, “Customer”), with respect to First Buzz Media’s provision of, and Customer’s use of, the Services (defined below). This Agreement is a legally binding agreement between First Buzz Media and Customer; please read it carefully and save a copy of it for your records.

THE PARTIES AGREE AS FOLLOWS:

  1. Services. 

First Buzz Media shall use commercially reasonable efforts to provide Customer (collectively, the “Services”):

(a) Select Services. Local web-marketing campaign services (the “Select Services”). The Select Services include (i) creating one or more custom Customer-branded search-optimized websites (each, a “White-Labeled Website”), which may be created using First Buzz Media’s proprietary software, “look and feel” designs, and templates (collectively, “Site Template”), and (ii) hosting and maintaining the White-Labeled Website through a third-party hosting provider and domain registrar of First Buzz Media.

(b) Marketplace Services. Self- serve lead generation services (the “Marketplace Services”). The Marketplace Services include placement of Customer’s company or individual profile, as applicable, (“Profile”) and advertised services and products through our network of affiliate publishers’ websites, which may include our own non-branded websites (e.g. paintingandhomeimprovements.website) (each, a “Placement”). Customer understands and agrees that Customer’s Profile may be included in any Placement and, unless Customer opts out of such placement in the manner specified by First Buzz Media. Customer authorizes and consents to all such placements. With respect to Placement Marketplace Services, Customer agrees that all placements of Customer’s Profile shall conclusively be deemed to have been approved by Customer unless Customer produces contemporaneous documentary evidence showing that Customer disapproved such placements in the manner specified by First Buzz Media; provider however, that Customer’s sole remedy and First Buzz Media’s sole obligation shall be the following: (i) First Buzz Media will request that the publisher of such Placement remove or modify such Placement in accordance with removal or change requested by Customer and (ii) if such removal or change is not implemented by such publisher of such Placement, then First Buzz Media will remove such publish from the campaign within a reasonable period of time.

(c) Support Services. Onboarding, training, technical or other reasonable support services related to the Select Services, the Marketplace Services and Platform (as defined below) in a manner First Buzz Media provides to its customers generally.

(d) Software Services. Access to and use of First Buzz Media’s proprietary call-tracking software (“First Buzz Media Software”) via a web-interface dashboard accessible from their websites, including but not limited to firstbuzzmedia.com, dashboard.firstbuzzmedia.dom and app.servicebuzzcrm.com (“Platform”). Customer may update the information and data (including text, images, designs, logos, photos, video, sounds, links, works of authorship, project information, trademarks, service marks and other content) (collectively, “Content”) displayed on a White-Labeled Website through the Platform.

  1. Designated Numbers; Inquiry Forms; Leads.

(a) Designated Numbers. If agreed to by the parties, First Buzz Media shall designate a phone number, or several phone numbers, as associated with Customer (any such telephone number, a “Designated Number”) and display any such Designated Numbers on a White-Labeled Website and otherwise publicize such Designated Number in connection with the Select Services and/or Marketplace Services, as applicable. Calls made to a Designated Number will be forwarded through a third-party provider to Customer’s designated business phone number (“Customer’s Number”).

(b) Inquiry Forms. Unless otherwise agreed to by the parties, First Buzz Media shall place an inquiry form on White-Labeled Websites, the inputted results of which will be supplied to a designated email address, or several email addresses, associated with and designated by Customer (any such email address, a “Customer Email Address”).

(c) Billable Leads.

(i) Call Leads. Each call, or attempted call, made by an individual to a Designated Number (each such call, a “Call Lead” and each such caller, a “Caller”) for the purpose of inquiring about, purchasing or otherwise receiving Customer’s products or services (“Customer’s Services”) is a “Billable Call Lead” unless, subject to Customer’s right to dispute such matters set forth in Section 2(f): (A) the duration of such call, if picked up by Customer and not placed on hold, is under twenty seconds (as determined by First Buzz Media), or (B) the applicable Caller had called a Designated Number or submitted an inquiry form through a Customer Email Address in (1) with respect to the Select Services, the 30-day period prior to such Call Lead or (2) with respect to the Marketplace Services, the 7-day period prior to such Call Lead (in each case, a “Non-Billable Call Lead”). For the avoidance of doubt:

  1. Call Leads are only Billable Call Leads if Caller’s purpose of making such call was to inquire about purchasing or otherwise receiving Customer’s Services; calls from solicitors and “wrong numbers” are not considered Billable Call Leads; and
  1. Other than with respect to Section 2(c)(i)(B), Call Leads that do not result in communication between a Caller and Customer (such as missed calls, a Caller hanging up while on hold with Customer, a Caller reaching voicemail and declining to leave a message, etc.) are Billable Call Leads.

(ii) Email Leads. Each inquiry form (“Inquiry Form Lead” and together with Call Leads, “Leads”) submitted by an individual (a “Submitter” and together with Callers, “Inquirers”) to a Customer Email Address for the purpose of inquiring about, purchasing or otherwise receiving Customer’s Services is a “Billable Inquiry Form Lead” unless, subject to Customer’s right to dispute such matters set forth in Section 2(f): (A) the submitted information does not contain either a valid telephone number or a valid email address, or (B) the applicable Submitter had submitted an inquiry form through a Customer Email Address or called a Designated Number in (1) with respect to the Select Services, the 30-day period prior to such Inquiry Form Lead or (2) with respect to the Marketplace Services, the 7-day period prior to such Inquiry Form Lead (in each case, a “Non-Billable Inquiry Form Lead” and together with Non-Billable Call Leads, “Non-Billable Leads”).

(d) No Further Requirements. For the avoidance of doubt, a Lead is a Billable Lead regardless of (i) whether the Inquirer actually purchases or receives Customer’s Services in connection with such Lead, or (ii) subject to Sections 2(c)(i)(B) and 2(c)(ii)(B), the identity of the Inquirer. For example, a Lead may be a Billable Lead even if the Caller, if applicable, is a price shopper merely soliciting pricing and/or general information regarding Customer’s Services.

(e) Lead Errors; Investigation. If First Buzz Media determines, in its sole discretion, that an unusual or otherwise suspicious number of attempted Leads are not received, registered or otherwise properly handled (“Lost Leads”), First Buzz Media may, but is not obligated to, investigate the cause of the Lost Leads. If any such investigation reveals that the Lost Leads resulted from any acts or omissions of Customer (such as disconnecting phone lines, email addresses, or not paying service provider bills) or other failure in Customer’s obligations under this Agreement, including those set forth in Section 5, notwithstanding anything to the contrary in Section 2(c), each such Lost Lead is deemed a Billable Lead that First Buzz Media may invoice and charge Customer for hereunder.

(f) Lead Review; Credit. Customer may request that First Buzz Media review the designation of such Lead as a Billable Lead. Customers who are utilizing the Select Services offering are able to request review of a lead within 30 days of receiving a Lead. Customers utilizing the Marketplace Services offering are able to request review of a lead within 7 days of receiving a Lead. After any such review, First Buzz Media may (but is not obligated to) re-designate such Lead as a Non-Billable Lead and, as Customer’s sole remedy, issue Customer a credit for any Fees actually paid by Customer to First Buzz Media in connection with such Lead.

  1. Lead Data; Lead Audio Recording.

(a) Lead Audio. First Buzz Media Software may monitor, record and archive each or any Call Lead (i.e., the conversation between a Caller and Customer) (such monitoring, recording and/or archiving features, collectively, “Call Recording” and the audio data monitored, recorded and/or archived “Call Audio”). Subject to the remainder of this Section, Customer may enable or disable Call Recording at any time via the Platform.

(b) Recorded Call Message. If Customer enables Call Recording, Customer must utilize Service Provider’s pre-recorded message to be automatically played prior to the connection of a Call Lead to Customer advising the Caller that his/her call is subject to recording and monitoring (“Recorded Call Message”).

(c) Consent and Notice. Without limiting Customers obligations under Section 5, Customer shall provide all notices to and obtain all consents, and permission required by Law (as such term is defined in Section 5 below) from each of its agents (including employees), independent contractors, and other individuals who receive Leads that are monitored or recorded in connection with Call Recording (“Call Receivers”).

(d) Lead Data; Lead Audio Ownership. As between First Buzz Media and Customer, First Buzz Media owns all right, title, and interest in and to any Lead data and information uploaded, submitted, transferred, processed or otherwise transmitted by, to or through the First Buzz Media Software and/or Platform, including identification information of the applicable Caller, the date and time the Call Lead was made, the duration of the Call Lead, a transcript of the Call Lead and the Designated Number the Call Lead was made to (collectively, but excluding Call Audio, “Lead Data”). To the extent Customer has or acquires any right, title or interest in any Lead Data, Customer hereby irrevocably assigns all such right, title and interest in such Lead Data to First Buzz Media. Lead Data may be used by First Buzz Media for any lawful business purpose without a duty of accounting to Customer. As between First Buzz Media and Customer, First Buzz Media owns all right, title, and interest in and to any Lead Audio. First Buzz Media hereby grants Customer a non-exclusive, worldwide, non-transferable, non-sublicenseable, revocable license to use the First Buzz Media Intellectual Property (as such term is defined in Section 9 below), solely to the extent necessary to enable Customer to make reasonable use of the Services.

  1. Fees and Expenses.

(a) Lead Fees for all Select Services and Marketplace Services.

(i) Lead Fee Calculation. For each Billable Lead, Customer shall pay First Buzz Media a per-Lead fee (“Lead Fee”) at a price set by Customer through the Platform (“Price Per-Lead”); provided, however, Customer may not set the Price Per-Lead below First Buzz Media’s then-applicable minimum-price communicated to Customer (“Per-Lead Minimum”). Customer may adjust the Price Per-Lead at any time and with any frequency through the Platform during the term of this Agreement; provided, the Price Per-Led may never be less than the applicable Per-Lead Minimum.

(ii) Lead Fee Payments. Customer will pay all lead charges incurred in connection with the Service, using a payment method approved by First Buzz Media for that Customer, within a commercially reasonable time period specified by First Buzz Media (e.g., in the Service user interface or IO). First Buzz Media shall assign a billing threshold to Customer based on Customer’s economic position, industry and other factors as may be determined by First Buzz Media (“Billing Threshold Amount”). First Buzz Media will charge the Customer advertising costs on the first day of a new month for leads delivered in the previous month, or whenever Customer’s account reaches Customer’s Billing Threshold Amount — whichever comes first.

(b) Monthly Subscription for Select Services.

(i) Monthly Subscription Calculation. Unless otherwise agreed to by the parties, and in addition to any Lead Fees owed to First Buzz Media hereunder, Customer shall pay First Buzz Mediathe monthly subscription fee (“Monthly Subscription”) set forth in the Platform or otherwise communicated to Customer. First Buzz Media may modify (increase or decrease) the Monthly Subscription applicable to Customer upon thirty days’ notice provided in writing or through the Platform.

(ii) Monthly Subscription Payments. Monthly Subscription payments are due and payable on a monthly basis from the date Customer entered into this Agreement (each such date, a “Monthly Subscription Payment Date”); provided, if any such Monthly Subscription Payment Date falls on a date on which banking institutions located in the Commonwealth of Massachusetts are authorized or required by Law or other governmental action to close, such Monthly Subscription Payment Date will be deemed to occur on the next date such banks are open. On each Monthly Subscription Payment Date First Buzz Media may charge Customer’s credit card -or other electronic payment method-associated with Customer’s account (or otherwise invoice Customer for) the applicable Monthly Subscription.

(c) Account Activation cost.

(i) Account Activation cost Amount. Unless otherwise agreed to by the parties, and in addition to any Lead Fees and Monthly Subscription owed to First Buzz Media hereunder, Customer shall pay First Buzz Media a one-time account activation cost (“Account activation cost” and together with Lead Fees and Monthly Subscription, “Fees”) communicated to Customer. Currently the Account activation cost only apply to Select Services. However, Account activation costs may apply to Marketplace Services in the future.

(ii) Account Activation cost Payments. Customer shall pay First Buzz Media the Account activation cost upon acceptance of this Agreement and First Buzz Mediamay charge Customer’s credit card -or other electronic payment method-associated with Customer’s account-(or otherwise invoice Customer for) the Account activation cost.

(d) Payment Terms. All Fees hereunder are payable in U.S. dollars and nonrefundable (except to the extent set forth in this Agreement). Customer hereby authorizes First Buzz Media to charge the credit card—or other electronic payment method—associated with Customer’s account for all Fees. Notwithstanding the foregoing, First Buzz Media may invoice Customer for any Fees, and Customer shall pay the Fees set forth in such invoice within thirty (30) days of receipt thereof via credit card or any other payment method First Buzz Media may, in its sole discretion, deem acceptable.

(e) Late Payment. Any Fees not paid when due shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable Law, calculated daily and compounded monthly. Customer shall also reimburse First Buzz Media for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

(f) Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, First Buzz Media’s income, revenues, gross receipts, personnel or real or personal property or other assets.

  1. Customer Obligations.

(a) Customer shall:

(i) (A) respond promptly to any First Buzz Media request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for First Buzz Media to perform Services, (B) provide such Content and documentation as First Buzz Media may reasonably request to carry out the Services (all Content provided or made available to First Buzz Media by Customer, directly or indirectly, hereunder, “Customer Content”), in a timely manner, and ensure that Customer Content is complete and accurate in all material respects, and (C) immediately notify First Buzz Media if any Customer Content is or becomes untrue, misleading or otherwise inaccurate;

(ii) in relation to its use of the Services and Call Recording, and its provision of Customer Content, provide all notices and obtain and maintain all necessary licenses and consents and comply with all applicable statutes, laws, ordinances, regulations, rules, codes, orders, constitutions, treaties, common law, judgments, decrees, other requirements or rules of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction (collectively, “Laws”);

(iii) keep, and maintain the equipment and services necessary to ensure the functionality of Customer’s Number, Customer’s Email and any related call- or email- receiving, forwarding, answering or other services; and

(iv) Customer agrees to maintain the proper bonding, licensing, and insurance as needed for each of Customer’s Services, and notify First Buzz Media of any changes in Customer’s bonds, licenses or insurance status. Customer expressly releases First Buzz Media, its employees, officers, directors, affiliates, and agents from any and all liabilities, claims, or damages, including nominal, inconsequential, and incidental damages, of every nature and kind, suspected or unsuspected, known and unknown, disclosed and undisclosed in any way connected with Customer’s dealings with, including but not limited to, any patron or customer, potential patron or customer, subcontractor, homeowner, business, organization, or individual. Customer agrees to defend, indemnify and hold First Buzz Media harmless from and against any demands, claims, charges, or liability of any kind arising out of any of Customer’s Services, including, without limitation, claims by any customer, subcontractor, or supplier.

(b) Customer acknowledges that First Buzz Media’s ability to provide the Services is dependent upon the full and prompt co-operation of Customer, and if First Buzz Media’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, First Buzz Media shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

  1. First Buzz Media Software.

(a) Changes. First Buzz Media may, in its sole discretion, make any changes to the First Buzz Media Software (including the Platform) that it deems necessary or useful to (i) maintain or enhance (A) the quality or delivery of First Buzz Media’s products or services to its customers, (B) the competitive strength of, or market for, First Buzz Media’s products or services, (C) the First Buzz Media Software’s cost, efficiency or performance, or (ii) to comply with applicable Law.

(b) Restrictions on Use. Customer shall not, nor permit or encourage any third party to, directly or indirectly: (i) use, capture, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the First Buzz Media Software or Platform, except as expressly permitted under this Agreement; (ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework or data records within or associated with the First Buzz Media Software or Platform; (iii) interfere with or disrupt the integrity or performance of the First Buzz Media Software or Platform, including by disrupting the ability of any other person to use or enjoy the First Buzz Media Software or Platform; (iv) access the First Buzz Media Software or Platform for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services or any products or services offered by First Buzz Media; (v) rent, lease, lend, sell or sublicense the First Buzz Media Software or Platform or otherwise provide access to the First Buzz Media Software or Platform as part of a service bureau or similar fee-for-service purpose; (vi) violate any applicable local, state, provincial, federal or international law or regulation, or use the First Buzz Media Software or Platform for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights; (vii) remove or obscure any proprietary notice that appears within the First Buzz Media Software or Platform; (viii) impersonate any person or entity, including First Buzz Media personnel, or falsely state or otherwise misrepresent your affiliation with First Buzz Media, or any other entity or person; (ix) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the First Buzz Media Software or Platform; (x) take any action that imposes an unreasonable or disproportionately heavy load on the First Buzz Media Software or Platform or its infrastructure; or (xi) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the First Buzz Media Software or Platform; or download, reproduce, or archive any substantial portion of the First Buzz Media Software or Platform.

  1. White-Labeled Website Terms; Customer Content.

(a) White-Labeled Website Terms of Use. Customer acknowledges and agrees end user’s use of the White-Labeled Website will be governed by First Buzz Media’s standard “Website Terms of Use” and “Privacy Policy” that First Buzz Medias utilizes generally for its customers as the same may change from time to time.

(b) Prohibited Content. Customer shall not upload, post, transmit or otherwise make available through the White-Labeled Website and/or Placement, or provide or make available to First Buzz Media, any Content that: (i) is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful or otherwise objectionable; (ii) may not be made available under any Law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes, dilutes, misappropriates or otherwise violates any patent, trademark, trade secret, copyright or other intellectual property or proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains or causes to be placed on First Buzz Media’s or other third party’s systems software viruses, worms, Trojan horses, or any other code, files, routines or programs designed or intended to (A) interrupt, destroy or limit the functionality of any software or hardware, or (B) interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information; (vi) consists of information that Customer knows or has reason to know is false, misleading or inaccurate; or (vii) violates any applicable Law, including privacy laws and privacy standards.

(c) Right to Pre-Screen. Customer acknowledges and agrees that First Buzz Media has no obligation to pre-screen Customer Content, although First Buzz Media reserves the right in its sole discretion to pre-screen, refuse or remove any Customer Content from any White-Labeled Website. Without limiting the generality of the foregoing sentence, First Buzz Media may remove any Customer Content that violates this Agreement or that it deems, in its sole discretion, objectionable.

  1. Representations and Warranties.

(a) Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of its jurisdiction of incorporation, organization, or chartering; (ii) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (iii) the acceptance of this Agreement by its representative has been duly authorized by all necessary corporate action of the party; and (iv) when accepted, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

(b) First Buzz Media

(i) Representations and Warranties. First Buzz Media warrants that it shall perform the Services in accordance with the terms and subject to the conditions set out in this Agreement in a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.

(ii) Remedies. First Buzz Media’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be for First Buzz Media to, if applicable, reperform the applicable Services.

(c) Customer. Customer represents, warrants and agrees (i) in connection with Call Recording, Customer (A) has reviewed the legality of recording, monitoring, and storing, and divulging telephone calls, and (B) is permitted to engage in those activities, (ii) it has reviewed the proposed usage of the First Buzz Media Software with its legal counsel and has established proper procedures to protect the privacy of, and otherwise comply with all applicable Laws with respect to, Callers and the Call Receivers, (iii) the Customer Content does not, and when used as permitted under this Agreement will not, infringe, misappropriate, dilute or otherwise violate the Intellectual Property Rights (defined below) of any person, (iv) Customer has all necessary right and authority to grant the rights set forth in this Agreement with respect to the Customer Content; (v) it is not located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country, and (vi) that Customer will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export Laws and import and use Laws of the country where the First Buzz Media Software or Platform are accessed or used and Customer is not: (A) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (B) listed on any U.S. Government list of prohibited or restricted parties, including, but not limited to, the Specially Designated Nationals List.

(d) Disclaimers.

(i) CUSTOMER’S USE OF THE SERVICES IS AT ITS SOLE RISK. ALL CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS SET FORTH IN THIS SECTION, First Buzz Media EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, ANY AND ALL WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

(ii) First Buzz Media MAKES NO REPRESENTATION OR WARRANTY: (A) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENT, (B) THAT ACCESS TO THE PLATFORM OR THE WHITE-LABELED WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THAT THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES, INCLUDING THE CALL AUDIO, WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE, (D) REGARDING THE LEGALITY OF CALL RECORDING OR THE RECORDED CALL MESSAGE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).

(iii) FIRST BUZZ MEDIA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY PROVIDERS (defined below) AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN First Buzz Media AND SUCH THIRD TECHNOLOGY PARTY PROVIDER, BE SOLELY AGAINST SUCH THIRD PARTY TECHNOLOGY PROVIDER.

  1. Intellectual Property Rights.

(a) Definition. “Intellectual Property Rights” means all intellectual property and proprietary rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights arising in any jurisdiction.

(b) Customer Content. Customer hereby grants to First Buzz Media and its service providers a non-exclusive, royalty-free, fully-paid, sublicensable (to First Buzz Media’s vendors, contractors and affiliates in performing the Services), non-transferable (other than in connection with Section 22), irrevocable, worldwide license under Customer’s Intellectual Property Rights to use, display, perform, reproduce, prepare derivative works, distribute, modify and otherwise exploit the Customer Content, in connection with First Buzz Media’s obligations and rights under this Agreement. Subject to the foregoing sentence, Customer is, and hereby remains, the sole and exclusive owner of all right, title and interest in, to and under the Customer Content and all Intellectual Property Rights therein.

(c) First Buzz Media Intellectual Property.

(i) Ownership. Subject to Section 9(c)(ii), First Buzz Media is, and hereby remains, the sole and exclusive owner of all right, title and interest in, to and under the Services, the Site Template, the White-Labeled Website (except to the extent containing Customer Content), the First Buzz Media Software (including the Platform), any and all domain name registrations utilized in connection with the foregoing and all improvements, enhancements and modifications to any of the foregoing and all other materials that are delivered, or made available, to Customer under this Agreement or prepared by or on behalf of First Buzz Media in the course of performing the Services (collectively, “First Buzz Media Intellectual Property”). To the extent Customer has or acquires any right, title or interest in any First Buzz Media Intellectual Property, Customer hereby irrevocably assigns all such right, title and interest in such First Buzz Media Intellectual Property to First Buzz Media.

(ii) License. First Buzz Media hereby grants Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, revocable license under its Intellectual Property Rights to use the First Buzz Media Intellectual Property, solely to the extent necessary to enable Customer to make reasonable use of the Services.

(iii) Blind Data. Without limiting Section 3(d), all data and information of Customer (explicitly excluding Lead Data) obtained by First Buzz Media in connection with this Agreement and the Services provided (such data and information, “Data”) shall at all times remain the sole and exclusive property of Customer. Customer hereby grants to First Buzz Media an irrevocable, non-exclusive, sublicensable, royalty free, paid up, worldwide license to use access, transmit, host, store, and display Data to provide the Services and as necessary to monitor and improve the Services (including the Platform) including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. Additionally, Customer hereby grants to First Buzz Media a perpetual, irrevocable, non-exclusive, transferable, sublicensable, royalty free, paid up, worldwide license to use Data to use, publish, share, distribute, disclose, collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such Data on an aggregate basis or in a de-identified (“Blind Data”). Notwithstanding anything in this Agreement to the contrary, to the extent that First Buzz Media collects or generates Blind Data, such Blind Data will be owned solely by First Buzz Media and may be used for any lawful business purpose without a duty of accounting or obligation, provided that such data is aggregated, not personally identifiable and does not identify the source of such data.

  1. Suggestions. First Buzz Media shall be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in any suggestions, comments, ideas, improvements or other feedback Customer or its agents or employees elects to provide or make available to First Buzz Media relating to the Service (“Suggestions”) without credit or compensation to Customer.
  1. Confidentiality.

(a) Definition. From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, whether marked as confidential or not (”Confidential Information”); provided, however, that Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (iv) was or is independently developed by Receiving Party without using any of Disclosing Party’s Confidential Information. For the avoidance of doubt, Suggestions are not Confidential Information of Customer.

(b) Treatment of Confidential Information. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

(c) Required Disclosures. If the Receiving Party is required by applicable Law or legal process to disclose any Confidential Information, it shall, if permitted by Law, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.

  1. Term, Termination and Survival.

(a) Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until terminated pursuant to this Section.

(b) Customer Termination. Customer may terminate this Agreement or suspend its receipt of the Services at any time and such termination or suspension will be effective within five business days; provided, such termination must be communicated to First Buzz Media through the prescribed channels for doing so on First Buzz Media’s website.

(c) First Buzz Media Termination. First Buzz Media may cease its provision of any Services at any time and may terminate this Agreement at any time by providing notice to Customer.

(d) First Buzz Media Suspension. In addition to all other remedies available under this Agreement or at Law (which First Buzz Media does not waive by the exercise of any rights hereunder), First Buzz Media shall be entitled to suspend the provision of any Services if (i) Customer fails to pay any undisputed Fees when due hereunder following written notice thereof, (ii) First Buzz Media believes that Customer is in violation of this Agreement.

(e) Survival. The rights and obligations of the parties set forth in Sections 3(d), 4 (with respect to payment of owed Fees), 6(b), 8(d), and 9-29 will survive any such termination or expiration of this Agreement.

  1. Indemnification. 

Customer shall indemnify, defend and hold harmless First Buzz Media and its affiliates, and each of their officers, shareholders, directors, employees and agents (collectively, the “First Buzz Media Indemnified Parties”), from and against any and all third-party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, charges, expenses (including attorneys’ and accountants’ fees and disbursements) and costs (“Claims”), incurred by, borne by or asserted against any of the First Buzz Media Indemnified Parties to the extent such Claims relate to, arise out of or result from: (i) any intentional or willful conduct or negligence of any employee, agent or subcontractor of Customer; (ii) breach or inaccuracy of any representation, warranty, obligation or covenant of Customer contained herein; (iii) Customer’s use of the Services; (iv) Customer Content or (v) the Customer Services.

  1. Limitation of Liability.

(a) Exclusion of Certain Liabilities. IN NO EVENT SHALL First Buzz Media BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA, GOODWILL OR DIMINUTION IN VALUE, USE OR OTHER INTANGIBLE LOSSES, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT First Buzz Media HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM CUSTOMER’S USE OR INABILITY TO USE THE SERVICES OR CONTENT, THE COST OF OBTAINING SUBSTITUTE PRODUCTS OR SERVICES RESULTING FROM ANY LOSS OF DATA, INFORMATION, PRODUCTS OR SERVICES OBTAINED FROM TRANSACTIONS ENTERED INTO THROUGH THE SERVICES, OR STATEMENTS OR CONDUCT OF ANY THIRD PARTY, OR ANY OTHER MATTER RELATED TO SERVICES OR CONTENT AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO CUSTOMER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MIGHT HAVE ADDITIONAL RIGHTS.

(b) Maximum Liability. IN NO EVENT SHALL FIRST BUZZ MEDIA’S 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 AGGREGATE AMOUNTS ACTUALLY PAID TO First Buzz Media PURSUANT TO THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

  1. Third Party Providers. 

The Services rely on third party technology and services such as for web hosting and maintenance services and credit card processing services. Customer hereby consents to First Buzz Media’s delegation of its obligations with respect to such services hereunder to third party technology and services providers of First Buzz Media’s choice (“Third Party Technology Providers”). Third Party Technology Providers may require acceptance by Customer of additional terms of service or use, and Customer hereby agrees to comply with any such terms. Without limiting the generality of Sections 8(d) and 16, any change to the products or services offered by any Third Party Technology Providers may materially and adversely effect, or entirely disable, Customer’s use of the Services, including its access to the Platform or Call Audio. Likewise, First Buzz Media cannot guarantee that any data (including Lead Data, Call Audio and credit card information) stored, hosted or processed by a Third Party Technology Provider will remain secure. Customer hereby acknowledges that First Buzz Media cannot offer any additional or modified security procedures other than those put in place by the Third Party Technology Providers; however, First Buzz Media shall provide Customer with information regarding the hosting service provider’s security practices upon request made to info@firstbuzzmedia.com.

  1. Force Majeure. 

First Buzz Media is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to Laws, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions or acts of hackers, internet service providers or any other third party, or acts or omissions of Customer.

  1. Entire Agreement. 

This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

  1. Notices. 

All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and if to First Buzz Media, address to 867 Boylston Street 5th Floor #1064 Boston, MA 02116, with a copy to Legal Department and if to Customer, addressed to Customer’s address associated with its account. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested, postage prepaid), or email.

  1. Severability. 

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

  1. Amendments. 

No amendment to or modification of this Agreement by Customer is effective unless it is in writing and accepted by an authorized representative of each party. First Buzz Media may change or amend this Agreement at any time by providing notice to Customer through the Platform or via Customer’s email address associated with its accounts. Customer’s continued use of the Services following notice of revisions to this Agreements constitutes Customer’s acceptance and agreement to the changes.

  1. Waiver. 

No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

  1. Assignment. 

Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of First Buzz Media. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. First Buzz Media may assign any of its rights or delegate any of its obligations freely to any person (individual or entity) without Customer’s consent.

  1. Successors and Assigns. 

This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.

  1. No Third-Party Beneficiaries. 

Except as set forth herein, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and does not confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

  1. Governing Law; Consent to Personal Jurisdiction. 

THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. SUBJECT TO THE ARBITRATION PROVISION IN SECTION 26, THE PARTIES AGREE THAT THE EXCLUSIVE VENUE FOR RESOLVING ANY DISPUTE BETWEEN THE PARTIES SHALL BE THE STATE AND FEDERAL COURTS LOCATED IN SUFFOLK COUNTY, MASSACHUSETTS, UNLESS A DIFFERENT MASSACHUSETTS VENUE IS MANDATED BY APPLICABLE LAW. CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN SUFFOLK COUNTY, MASSACHUSETTS. CUSTOMER FURTHER ACKNOWLEDGE AND AGREE THAT MANY OF THE WITNESSES AND RECORDS THAT WOULD BE RELEVANT TO ANY DISPUTE BETWEEN THE PARTIES ARE LOCATED IN SUFFOLK COUNTY, MASSACHUSETTS, AND THAT SUFFOLK COUNTY, MASSACHUSETTS, WOULD NOT BE AN INCONVENIENT FORUM OR VENUE FOR THE RESOLUTION OF ANY DISPUTE BETWEEN THE PARTIES. EACH PARTY HEREBY WAIVES ANY OBJECTION TO SUFFOLK COUNTY, MASSACHUSETTS, AS A FORUM AND VENUE FOR THE HEARING OF ANY DISPUTE BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY OBJECTION BASED ON CONVENIENCE.

  1. BINDING ARBITRATION

(a) Claims Settled by Arbitration. ALL ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR CUSTOMER’S ACCESS TO OR USE OF THE SERVICE OR PLATFORM, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS AGREEMENT (“Inter-Party Claims”) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CUSTOMER MAY ASSERT INTER-PARTY CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS AGREEMENT AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CUSTOMER’S INTER-PARTY CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

(b) Arbitration Procedure. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Boston, Massachusetts or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Inter-Party Claim shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

(c) Equitable Relief. Notwithstanding anything to the contrary herein, either party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 26.

  1. Waiver of Jury Trial.

Each party acknowledges that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

  1. Interpretation. 

The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” are references to a section of this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.

  1. Relationship of the Parties. 

Nothing in this Agreement is intended or will be construed to create or establish any agency, partnership or joint venture relationship between the parties. The parties expressly disclaim such relationship, agree that they are acting solely as independent contractors hereunder, and agree that the parties have no fiduciary duty to one another or any other special or implied duties that are not expressly stated herein. Neither party has any authority to act as agent for, or to incur any obligations on behalf of or in the name of, the other party.

  1. Privacy. 

Any information that Customer or other users provides to First Buzz Media is subject to their Privacy Policy, which governs the collection and use of Customer or other user’s information. Customer understands that through the use of the Services, Customer consents to collection and use (as set forth in the Privacy Policy) of this information. As part of providing Customer the Services, First Buzz Media may need to provide Customer with certain communications, such as service announcements or administrative messages. These communications are considered part of the Services which Customer may not be able to opt out of receiving.

Updated: February 5, 2024

First Buzz Media, LLC. 867 Boylston Street 5th Floor #1064 Boston, MA 02116

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