Terms of Service 

Version 1.0

Effective starting March 31, 2024.

PLEASE READ THESE TERMS & CONDITIONS (THE “TERMS AND CONDITIONS”) CAREFULLY. THIS AGREEMENT IS A LEGAL DOCUMENT BETWEEN YOU (THE “SUBSCRIBER” OR “LICENSEE”) AND AD VITAL, A PIONEER IN THE FIELD OF AESTHETIC PRACTICE AUTOMATION. Ad Vital operates the website https://advitalmd.com (the “Website”) and is the owner, creator, and developer of a proprietary range of applications, dashboards, and platforms which collectively form the “Ad Vital Software as a Service” (hereinafter also referred to as “Ad Vital’s SaaS” or “SaaS”, alongside the Website, known collectively as the “Services”). Ad Vital offers its SaaS to its Subscribers/Licensees under these Terms and Conditions and the terms of the User Contract and License Agreement (“License Agreement”) entered into with each Licensee.

  1. Acceptance of Terms and Conditions 

By entering into a License Agreement, using or gaining access to the Website or SaaS, and/or affirmatively accepting these Terms and Conditions to utilize Ad Vital’s SaaS, you are bound by these Terms and Conditions. You affirm that: (1) You have thoroughly read, understand, and accept these Terms and Conditions; (2) You have the legal capacity to enter into binding contracts with Ad Vital; and (3) You possess the authority to agree to these Terms and Conditions personally or on behalf of the entity represented in the License Agreement, thereby binding that entity to these terms. Should you disagree with any part of these Terms and Conditions, you may not access or use the SaaS.

  1. Conditions for Updated Terms 

You understand and agree that Ad Vital may, from time to time at its sole discretion, amend these Terms and Conditions. With your acceptance, these modified Terms and Conditions become binding.

Should substantial changes occur to these Terms and Conditions, Ad Vital will inform you via email; for immaterial changes, Ad Vital will simply notify you on the Website. Changes are effective thirty (30) days following notification. Disagreement with the changes requires discontinuation of the Services. Continuing to use the Services post-notification implies agreement to the updated Terms and Conditions. Any person accessing the Services on behalf of a Licensee confirms they are authorized to accept the updated Terms and Conditions on the Licensee’s behalf.

  1. Provision of Services 

Ad Vital grants you a non-exclusive, non-transferable, and non-sublicensable right to access and use the Services strictly for your business operations, subject to these Terms and Conditions. This also applies to any service updates or upgrades made available to you. Regular updates to improve service functionality may be made at Ad Vital’s discretion. Key to the successful delivery of SaaS, timely cooperation in the onboarding process is necessary, with any Subscriber-caused delays not serving as grounds for non-payment or contract termination.

4.1 Engagement with Third-Party Sites

Understanding the need for clients to review products or services on platforms like Google and Facebook may necessitate active accounts on these platforms.

In instances where the SaaS is integrated with or uses data from external services or websites (“Third Party Sites”), you acknowledge that Ad Vital doesn’t control these Third-Party Sites’ terms, privacy policies, or content and disclaims all responsibility and liability for your use of such sites. The SaaS may include third-party software (“Third-Party Software”), with Ad Vital disclaiming all responsibility for such software. Usage of the SaaS binds you to these Third-Party Software terms: Google (https://policies.google.com/terms?hl=en-US), Facebook (https://www.facebook.com/legal/terms), Healthgrades (https://www.healthgrades.com/content/user-agreement).

4.2 Obligations with Respect to Third Party Sites

When using the SaaS, Subscriber agrees to adhere to the terms of service of all review sites. This includes, but is not limited to Google, Facebook, and Healthgrades.

4.3 TCPA and 10DLC Compliance

  1. TCPA: To the extent required by law and as applicable to the parties, the parties shall comply with the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). Subscriber will be solely responsible for complying with any messaging consent obligations under the TCPA and regulations promulgated in enforcement thereof while accessing and using the SaaS. Subscriber is responsible for obtaining consent from all third parties (including Subscriber’s customers, clients, or patients) to send and receive SMS and/or emails using Ad Vital’s SaaS.
  1. 10DLC: You understand that if you are using SMS-related services, you are responsible for complying with A2P 10DLC, including but not limited to registration and obtaining customer/client/patient consent. Subscriber authorizes Ad Vital to act as its legal representative in the 10DLC registration process when such representation is necessary to deliver the Services.

4.4 Account Protection; Responsibilities 

Subscriber’s accounts cannot be shared or used by more than one user. Subscriber is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under Subscriber’s accounts. If Subscriber becomes aware that the security of Subscriber’s login information has been compromised or breached, Subscriber must immediately deactivate such account or change the account’s login credentials. Additionally, Subscriber shall promptly deactivate the account or change the login credentials for any individual (e.g., former employee) that no longer is authorized by Subscriber to access Ad Vital’s SaaS. Subscriber will: (a) obtain any permissions and consents required for Ad Vital to access Subscriber Data (defined below) in connection with the Services; (b) be responsible for any user’s compliance with these Terms and Conditions under Subscriber’s account; (c) be responsible for the accuracy, appropriateness, and legality of Subscriber Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and promptly notify Ad Vital of any such unauthorized access or use; and (e) use the Services only in accordance with applicable laws and government regulations.

4.5 Subscriber’s Restrictions on Use of Ad Vital’s SaaS

Subscriber agrees not to do any of the following while using this Website or Ad Vital’s SaaS:

Use, display, mirror, frame or utilize framing techniques to enclose the Website or SaaS, or any individual element or materials within the Website or SaaS, Ad Vital or Leadconnector Mobile’s name, trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without Ad Vital’s express written consent; Upload, post, transmit, or otherwise make available to the Services any content that (i) is unlawful or tortious, or (ii) Subscriber does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; Sublicense, resell, time share, or similarly exploit the Services Access, tamper with, or use without authorization non-public areas of the Website or SaaS, Ad Vital’s computer service or server, or the technical delivery services of Ad Vital’s providers; Attempt to breach any security or authentication measures; Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Ad Vital or any of Ad Vital’s providers or any other third party (including another user) to protect the Website or Ad Vital’s SaaS and related content; Attempt to access or search the Website, SaaS or Ad Vital’s SaaS content or download Ad Vital’s SaaS content from the website or SaaS through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Ad Vital or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera); Use any meta tags or other hidden text or metadata utilizing a Ad Vital or Leadconnector Mobile trademark, logo URL or product name without Ad Vital’s express written consent; Use the Website, SaaS or Ad Vital’s SaaS content for the purpose of bringing an intellectual property infringement claim against Ad Vital, unless allowed by applicable law, or for the purpose of creating a product or service competitive with Ad Vital’s SaaS; Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Website, SaaS, or Ad Vital’s SaaS content to send altered, deceptive or false source- identifying information; Attempt to decipher, decompile, disassemble, create a derivative work, reverse engineer or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the SaaS or any of the software used to provide the Website, SaaS or Ad Vital’s SaaS content; Violate any applicable law or regulation; Develop or build products which perform substantially similar to Ad Vital’s SaaS; or Encourage or enable any other individual to do any of the foregoing. Ad Vital shall have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Website and SaaS security issues, to the fullest extent of the law. Ad Vital may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms and Conditions. Subscriber acknowledges that Ad Vital has no obligation to monitor Subscriber’s access to or use of the Website, SaaS or Ad Vital’s SaaS content, or to review or edit any user content but has the right to do so for the purpose of operating the Website and providing its SaaS, to ensure Subscriber’s compliance with these Terms and Conditions, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Ad Vital reserves the right, at any time and without prior notice, to remove or disable access to the Services or any Ad Vital’s SaaS content, that Ad Vital, in its sole discretion, considers to be in violation of these Terms and Conditions or otherwise harmful to the Website or Ad Vital’s SaaS.

5.1 Fees and Payment 

As applicable, Subscriber shall timely pay Ad Vital the fees as stated in the License Agreement. Notwithstanding, Ad Vital may change the license subscription pricing charged upon the providing of thirty (30) days written notice of such change via email. The change will become effective at the beginning of the next periodic billing cycle following such notice. This notice will provide Subscriber an opportunity to cancel this Agreement prior to the effective date of any such price change.

5.2 Monthly Licensing Fee 

The Ad Vital SaaS license is billed on a subscription basis. This means that Subscriber will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are monthly unless otherwise agreed upon by the parties. Subscriber’s subscription will automatically renew at the end of each billing cycle unless canceled as provided in the License Agreement. Billing cycles will begin upon completion of the setup of Subscriber’s SaaS. Usage fees will be processed with Stripe/NMI on usage plans at varying pricing plans for SMS, Phone calls, AI and Email.

5.3 Payment/Non-Payment 

At the time of execution of the License Agreement, Subscriber shall provide Ad Vital with a valid credit card or ACH information and authorization to charge the license subscription fee due and payable. Subscriber is responsible to update its credit card or ACH information should the original card or ACH provided expire or otherwise become suspended or canceled, so that Ad Vital has a valid credit card or ACH and valid authorization always attached to Subscriber’s account. Should Subscriber fail to keep its credit card or ACH information current, services will be suspended until a valid credit card or ACH information and authorization is received and all past due charges have been brought current. Subscriber represents and warrants that it is authorized to use each credit card or ACH information which it has provided to Ad Vital and will provide reasonable assistance as Ad Vital requires to comply with any applicable laws and regulations to charge such credit card or ACH.

5.4 Late Payments 

Subscriber’s failure to pay the setup fee or license fees when due constitutes a material breach of the License Agreement. If payment is not received within thirty (30) days of when it is due, Ad Vital may, in its sole discretion, choose to do any or all of the following: (i) charge Subscriber a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by law, rounded to the next highest whole month and compounded monthly; and/or (ii) suspend Subscriber’s access to Ad Vital’s SaaS. Ad Vital’s suspension or resumption of Subscriber’s subscription does not limit or prevent Ad Vital from pursuing all other remedies available under the law.

5.5 Auto Renew 

Unless otherwise noted in the License Agreement, the License Agreement and corresponding subscription to Ad Vital’s SaaS will auto renew for the same period of time as the initial term of the License Agreement unless written notice of non-renewal is provided to Ad Vital in accordance with the License Agreement.

6.1 Warranties of Ad Vital 

Ad Vital will only provide the services described above and will not use any of the information provided by Subscriber’s customers/clients/patients in response to the e-mails, SMS (text) messages, and surveys generated by the SaaS for any purpose other than to provide Subscriber with results to help the Subscriber improve its business.

6.2 Warranties of Subscriber, Indemnification and Hold Harmless

Subscriber acknowledges and understands that Ad Vital will only provide the SaaS described above, and that it will not use any of the information provided by Subscriber’s customers/clients/patients in response to the e-mails, text messages, and surveys generated by the SaaS for any purpose other than to provide Subscriber with results to help the Subscriber improve its business.

Subscriber represents and warrants that it has obtained and will maintain all rights, consents, and permissions necessary for Subscriber to make available the Subscriber Data to Ad Vital for its use as contemplated herein.

Subscriber further represents and warrants that it will only use the information received in response to the e-mails, SMS (text), and surveys generated by the SaaS in a manner that is in full compliance with all federal and applicable state laws and regulations.

Subscriber, warrants, acknowledges, and understands that the surveys and on-line reviews generated by its customers/clients/patients and/or their legal guardians or representatives, or others having access to those e-mail or mobile phone accounts may be negative and, in some cases, derogatory or defamatory toward Subscriber or others. Subscriber warrants, acknowledges, and understands that Ad Vital has no control over the responses submitted or posted in response to the e-mails, SMS (text) messages, and surveys the SaaS generates and that Ad Vital is not liable to Subscriber or any other individual or entity for any response submitted or posted on-line or elsewhere by Subscriber’s customers/clients/patients and/or their legal guardians or representatives or others having access to those e-mail or mobile phone accounts. To the fullest extent possible under the law, Subscriber waives and releases all claims it has, may have, or could have against Ad Vital arising therefrom.

The warranties contained in this section are material provisions of this Agreement, without which Ad Vital would not have agreed to provide the SaaS license to Subscriber. Consequently, should Subscriber violate its warranties set forth in this section it hereby agrees to indemnify, defend, and hold harmless Ad Vital, its principals, managers, members, employees and agents (“Indemnified Parties”) from and for any and all claims, liabilities, demands, suits, causes of actions or proceedings of any kind or nature, losses or damages, including attorneys’ fees and costs of defense which Ad Vital may incur arising out of, or in any way related to, a suspected or actual breach of Subscriber’s representation and warranties. Subscriber will also indemnify, defend and hold harmless the Indemnified Parties from and against any lawsuit or proceeding brought by a third party to the extent alleging that any Subscriber Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or that Subscriber’s particular use of the Services violates applicable law.

Subscriber’s obligation to indemnify Ad Vital hereunder includes the obligation to i) investigate and defend all claims, suits, or actions of any kind or nature, including appellate proceedings in the name of the Indemnified Parties; ii) pay for the cost of defense, including attorney’s fees; iii) pay all claims, damages and losses, and/or statutory or governmental fines or penalties in connection with all of the foregoing; and iv) satisfy all judgments, decrees, or orders including those for attorney’s fees which may issue against the Indemnified Parties thereon.

7.1 Intellectual Property Rights

Subject to the limited rights expressly granted to Subscriber hereunder, Ad Vital reserves and retains, and as between Ad Vital and Subscriber, Ad Vital exclusively owns all right, title and interest, including intellectual property rights to Ad Vital’s SaaS and the e-mails, SMS (text) messages, and surveys that it will create for Subscriber, whether tangible or intangible, provided hereunder, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. If Subscriber provides Ad Vital any feedback or suggestions regarding the Services, then Subscriber grants Ad Vital an unlimited, irrevocable, perpetual, transferable, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Subscriber. Ad Vital reserves all rights not expressly granted to the Subscriber in the License Agreement or hereunder.

7.2 Ad Vital’s Proprietary Rights

Ad Vital remains the sole owner of all source code, object code, processes, and informational content thereof, methodology, templates, design, technology, trademarks and service marks, and other intellectual property rights associated with Ad Vital’s SaaS and Website regardless of whether it has formally registered or obtained patent, copyright or other legal protection. Subscriber acknowledges such ownership rights of Ad Vital and agrees that no use of Ad Vital’s SaaS or the e-mails, (SMS) text messages, and surveys developed by Ad Vital pursuant to the License Agreement or Terms and Conditions by the Subscriber is permissible except as permitted herein. This paragraph does not authorize modification of Ad Vital’s SaaS or the e-mails, SMS (text) messages, and surveys developed by Ad Vital for Subscriber.

The Subscriber acknowledges and agrees that the SaaS is and contains proprietary and confidential information that is protected by applicable intellectual property, trademark, and other laws. The Subscriber further acknowledges and agrees that the SaaS is of a confidential nature, and therefore agrees that Subscriber shall exercise due and reasonable care not to make available or in any other manner disclose to a third party the SaaS licensed to Subscriber except as provided herein. It is hereby specifically agreed that any voluntary disclosure of Ad Vital’s SaaS not allowed by law or without Ad Vital’s express written consent to a third party is a material breach of the License Agreement.

7.3 Subscriber Data 

Subscriber owns all data, content, and information submitted by Subscriber into the Services and the Subscriber-specific output that is generated by Subscriber’s use of the Services (the “Subscriber Data”). Except as provided herein, nothing contained herein shall be construed as granting Ad Vital ownership in any Subscriber Data. Subscriber hereby gives Ad Vital a non-revocable, transferable, sublicensable, worldwide, royalty-free right to use aggregated or anonymized Subscriber Data. Subscriber further grants Ad Vital a limited, transferable, sublicensable, non-exclusive, royalty-free, revocable, world-wide license to access, copy, distribute transfer, perform, display, use and disclose, as necessary to provide the Services and related professional services, to prevent or address service or technical problems or at Subscriber’s request in connection with support matters, as compelled by law, or as expressly permitted in writing by Subscriber, all information submitted by Subscriber and Subscriber’s end users in connection with Subscriber’s use of Ad Vital’s Services (e.g., Subscribers survey data is used to help the Subscriber improve their business). Subscriber agrees that Ad Vital may use Subscriber’s name, marks, and logo to indicate that Subscriber is a customer of Ad Vital on the Website, marketing materials, and in communications with existing or prospective Ad Vital customers. Any such attribution will be consistent with Subscriber’s style guidelines or requirements as communicated to Ad Vital by Subscriber.

During the term of these Terms and Conditions, Ad Vital shall maintain a security program materially in accordance with industry standards that is designed to: (i) ensure the security of Subscriber Data; (ii) protect against threats or hazards to the security or integrity of Subscriber Data; and (iii) prevent unauthorized access to Subscriber Data. If either party believes that there has been a security breach involving Subscriber Data, such party must promptly notify the other party, unless legally prohibited from doing so. Additionally, each party will reasonably assist the other party in mitigating any potential damage arising from any such security breach. As soon as reasonably practicable after any such security breach, Ad Vital shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with Subscriber.

  1. Disclaimer; Limitation of Liability

THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND Ad Vital EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Ad Vital DOES NOT WARRANT THAT THE SERVICEs WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT WILL Ad Vital HAVE ANY LIABILITY TO LICENSEE OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT Ad Vital HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT WILL Ad Vital’S AGGREGATE LIABILITY RELATING TO THESE TERMS AND CONDITIONS EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SUBSCRIBER TO Ad Vital HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE. For the avoidance of doubt, the exclusions and limitations set forth in Section 8 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The parties agree that the exclusions and limitations set forth in Section 8 allocate the risks between the parties under these Terms and Conditions, and that they have relied on these exclusions and limitations in determining whether to enter into these Terms and Conditions.

  1. Assignment 

These Terms and Conditions (and all rights and licenses enjoyed by Ad Vital herein), and as applicable, the License Agreement entered by Subscriber, may be assigned by Ad Vital, to any person, firm, corporation, company, or other business entity at any time, whether by purchase, merger, or otherwise, directly, or indirectly acquires all or a majority of the assets, membership interests, or business of Licensor. Such assignee will be deemed substituted for Ad Vital under the terms of the License Agreement and these Terms and Conditions as amended from time to time for all purposes. Subscriber may only assign the License Agreement or these Terms and Conditions upon the express written consent of Ad Vital, which consent can be withheld by Ad Vital in its sole and absolute discretion. The License Agreement these Terms and Conditions are binding on and inures to the benefit of the parties and their respective successors and permitted assigns.

  1. Jurisdiction, Venue, and Attorney’s Fees 

The License Agreement and these incorporated Terms and Conditions as amended from time to time, shall be construed in accordance with the laws of the State of Texas without regard to its conflict of law principles. Jurisdiction for any dispute arising out of, under, or relating to the License Agreement, these Terms and Conditions, or the parties, shall be exclusively in the state of Texas, with venue exclusively in the circuit and/or county courts of Harris County, Texas. The Parties consent to personal jurisdiction in Harris County, Texas and waive any right they may have to assert lack of jurisdiction or forum non-conveniens. In any legal action brought to interpret or to enforce any provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees, court costs and expenses, reasonably and necessarily incurred in the prosecution or defense of any such action, at the trial, post-trial, and appellate levels.

  1. Miscellaneous

The parties are independent contractors and these Terms and Conditions do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to these Terms and Conditions. No failure or delay by either party in exercising any right under these Terms and Conditions will constitute a waiver of that right. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms and Conditions will remain in full force and effect. Sections 5, 6.1, 7, 8, 9, 10, and 11 will survive any termination of these Terms and Conditions or a License Agreement.