Practice Growth System
Web Marketing Acceptable Use Policy
Last updated December 11, 2022
This Agreement is incorporated by reference into Client’s Practice Growth System Membership Agreement (“Membership Agreement”) and/or itrac, LLC Enrollment Agreement (“Enrollment Agreement”). itrac, LLC and Client agree to the following terms and conditions governing the marketing and other services being performed/provided by itrac, LLC on Client’s behalf.
1. itrac, LLC’s Service to Client:
(A) Overview: In consideration of weekly payments made by Client to itrac, LLC, itrac, LLC shall provide marketing services (“Service”) to Client as described in their Membership Agreement or Enrollment Agreement. While many services begin immediately, some services such as Paid Media Advertising (if applicable), itrac, LLC’s Hosting of Client’s Previous Website (if applicable) and Fresh and Unique Content (if applicable) may or may not begin until the launch of Client’s itrac, LLC-designed website, with the start date of those services based upon specific circumstances in each case according to each Client’s project plan.
(B) Hosting of Previous Website: itrac, LLC may offer to host a “static” version of Client’s existing website in order to maintain Client’s internet presence while Client’s itrac, LLC-designed website is developed (“Hosting of Client’s Current Website”). Client agrees to release and indemnify itrac, LLC against any claims that may arise from itrac, LLC’s Hosting of Client’s Current Website, including but not limited to any potential claims of trademark violation, copyright infringement, unauthorized use, or noncompliance with any applicable statutes, rules, or regulations. Client assumes all risk related to itrac, LLC’s Hosting of Client’s Previous Website (meaning Client’s Existing Website that predates their itrac, LLC services).
(C) Tracking Number: itrac, LLC’s services require the use of a tracking phone number in order to determine the effectiveness of Client’s marketing services and make any adjustments to service as needed. Client understands, acknowledges, and agrees that all of itrac, LLC’s services will use tracking phone numbers for the duration of the Initial Commitment and during any Renewal Terms. Client further agrees that all such tracking phone numbers are the sole property of itrac, LLC unless otherwise agreed by both parties, in writing.
(D) Disclosures About Service: Client agrees that itrac, LLC’s Services are subject to change based on market conditions, including changes to Google or other search engines’ recommended strategies, itrac, LLC marketing strategy, or overhead expenses. In the event that marketing services are changed, itrac, LLC will provide Client with services of equal or greater market value (as determined solely by itrac, LLC) to their previous marketing services. If itrac, LLC offers any type of market exclusivity to Client, itrac, LLC shall solely determine the scope of the exclusivity based upon market share, market size, market demographics, and the operation and/or specialties of Client’s dental practice, among other factors. itrac, LLC may also build a variable management fee into any budget listed for pay-per-click advertising in their Membership Agreement or Enrollment Agreement.
(E) Cooperation from Client: CLIENT UNDERSTANDS THAT itrac, LLC’S SERVICE REQUIRES COOPERATION AND MINOR COLLABORATION FROM THE CLIENT. AS SUCH, CLIENT SHALL REASONABLY FOLLOW THE TIME FRAMES AND GUIDELINES GIVEN TO THEM BY itrac, LLC WHEN POSSIBLE. IF CLIENT DEVIATES AND DOES NOT RESPOND IN A REASONABLE TIMEFRAME, itrac, LLC SHALL NOT BE RESPONSIBLE FOR ANY RESULTING INABILITY TO DELIVER ANY ASPECTS OF CLIENT’S SERVICE AND/OR ANY DELAYS THAT RESULT TO CLIENT’S SERVICE.
(F) Abuse of Services: Neither itrac, LLC nor Client shall engage in any illegal or malicious use of Service, any promotion of illicit activities, any unsolicited bulk electronic mailings, or other abuse of these services.
2. Internet Service Guidelines:
(A) Bandwidth: itrac, LLC shall provide dedicated or shared server computers with an internet address for storage and access of marketing materials and the Client’s website including reasonable bandwidth and storage as determined solely by itrac, LLC. If Client requires additional bandwidth or storage, itrac, LLC shall negotiate in good faith to accommodate Client’s needs.
(B) Website Accessibility: itrac, LLC shall provide hosting services for the website that meet commercially reasonable standards for, among other matters, packet loss, accessibility, latency, availability, and throughout, but cannot guarantee the same. itrac, LLC shall take commercially reasonable steps to prevent unauthorized access to the Client’s website and any confidential information stored on itrac, LLC’s server computers, but cannot guarantee the same. itrac, LLC shall employ best efforts in providing advance notice to Client of scheduled server computer/network outages, but cannot guarantee the same. itrac, LLC shall back up Client’s website in a commercially reasonable manner but is not responsible for lost content and marketing materials. Website backups will be stored by itrac, LLC for no longer than fourteen (14) days. Backups are intended for disaster recovery, not the restoration of individual files.
(C) Hardware and Software: itrac, LLC provides no equipment, software, or communication connections to Client. itrac, LLC makes no representations, warranties, or assurances that the Client’s equipment, software, and communication connections will be compatible with itrac, LLC’s hardware and service.
(D) Modifications to Website by Client: Client acknowledges that itrac, LLC offers no means for Client to directly modify, add, delete, or otherwise change content stored on itrac, LLC’s servers. Due to HIPAA regulations, itrac, LLC cannot offer or grant backend website access to Client or third-parties.
(E) Downtime and Losses: itrac, LLC is not responsible for any costs or losses associated with downtime, changes, or any other loss that may occur in the operation of the Client’s website.
(F) E911 Service: The Federal Communications Commission does not require that itrac, LLC provide E911 Service to Clients.
(H) Search Rankings: Online advertising runs the risk of algorithmic changes to search engines; itrac, LLC offers no guarantee of any specific placement in any search engine.
3. Payment Processing:
(A) Payments to itrac, LLC: In consideration of Service performed by itrac, LLC, Client shall either prepay for their Service in advance, or provide a weekly or monthly payment to itrac, LLC for the duration of their Membership Agreement or Enrollment Agreement. itrac, LLC reserves the right to increase service pricing on any Renewal Terms by providing thirty (30) days written notice to Client.
(B) Payment Method: Client shall provide itrac, LLC with direct debit (ACH) information or credit card information in order to facilitate itrac, LLC processing automatic payments to Client’s bank account or credit card. Client authorizes itrac, LLC to process service payments to any payment method the Client puts on file with itrac, LLC. Client agrees to notify itrac, LLC of any change to the ACH or bank account information. itrac, LLC shall not be responsible for any charges made by Client’s bank to Client’s financial accounts for exceeding credit limits, insufficient funds, or other reasons. Returned checks and/or chargebacks or payments will incur a fee of $100 per occurrence.
(C) Payment Disputes: Client must dispute any charges for the Service in a mailed writing within thirty (30) days of the date of the charge by itrac, LLC or Client waives any objection and further recourse.
(D) Refunds: There are no refunds on itrac, LLC’s Services, unless specific written terms associated with a product or service are previously agreed otherwise in writing. If the Client elects to prepay for their Service and elects/forces Client Termination of Agreement, itrac, LLC shall not issue any monetary refunds to the Client but, for a Client Termination of Agreement during a Renewal Term, will provide credit on the Client’s account that can be used for other itrac, LLC products or services for any charges for the period after the required ninety (90) day notice period. Except for the event in which itrac, LLC accidentally charges Client for service when they should not, itrac, LLC shall have no obligation to issue any refund to Client.
4. Ownership of Marketing Materials:
(A) Previously Produced Materials: Client grants to itrac, LLC a non-exclusive, worldwide license to use any previously produced marketing materials that Client has right to grant as part of Client’s itrac, LLC Service.
(B) Marketing Systems: Client acknowledges that any websites and other marketing systems (such as auto-responders) will be built upon systems and platforms that are proprietary/the intellectual property of itrac, LLC. Marketing systems including but not limited to PracticeHQ and/or Call Tracking system, email autoresponders, and other systems/accounts are the exclusive intellectual property of itrac, LLC and are non-transferable, non-licensable, and only available to active itrac, LLC clients. Upon cancellation, all proprietary developments and systems remain the sole property of itrac, LLC.
(C) Tracking Phone Numbers: Any telephone number provided by itrac, LLC (“Number(s)”) to the Client is leased and not sold; all Numbers are non-transferable. itrac, LLC reserves the right to change, cancel, or move the Numbers at its sole discretion.
5. Responsibility for Legal Compliance, Indemnification, and Ambiguities:
(A) Compliance with Laws: Client agrees that they are solely responsible for complying with such laws, taxes, and tariffs, related to or affecting Client’s website, and will hold harmless, indemnify, and defend itrac, LLC and/or its owners, employees, vendors, and the like from any claim, suit, penalty, tax, liability, etc. arising from Client’s use of itrac, LLC’s Service including all attorney’s fees and costs. Electronic commerce on Client’s site is not the responsibility of itrac, LLC.
(B) Advertising Regulations: If Client provides information on the applicable federal/state/international advertising regulations, itrac, LLC shall use reasonable efforts to ensure advertising material is in compliance. However, Client always assumes all risk for using the Service and releases itrac, LLC from any liability arising from using marketing materials produced by itrac, LLC.
(C) Indemnity: Client shall defend itrac, LLC, its owners, employees, agents, vendors, and the like against any third-party claim, action, suit, or proceeding arising as a result of Client’s use of itrac, LLC’s hardware or services and indemnify itrac, LLC, for all losses, damages, and expenses incurred by itrac, LLC, as a result of any judgment entered against itrac, LLC, in any such claim, action, suit, or proceeding.
(D) Ambiguities: The parties agree that any ambiguities in this Acceptable Use Policy, a Membership Agreement, or an Enrollment Agreement will not automatically be construed against the drafting party.
6. Delays in Service:
itrac, LLC shall not be liable for any delay or decline in performance directly or indirectly caused by or resulting from acts of God, epidemics or pandemics, war, government intervention, labor difficulties, equipment failure, late delivery by suppliers, or other difficulties as may occur in spite of itrac, LLC’s best efforts.
7. Breach of Membership Agreement, Enrollment Agreement, or Acceptable Use Policy by Client
(A) Overview: itrac, LLC DOES NOT ANTICIPATE THAT CLIENT WILL VIOLATE ANY ASPECT OF THIS AGREEMENT, INCLUDING A FAILURE TO PAY FOR SERVICE OR MAKE A LATE PAYMENT FOR THE SERVICE. FEES, CHARGES, AND ASSESSMENTS MAY BE ASSESSED AS LIQUIDATED DAMAGES INTENDED TO BE A REASONABLE ADVANCE ESTIMATE OF itrac, LLC’S COSTS RESULTING FROM LATE PAYMENTS, NON PAYMENTS, AND OTHER VIOLATIONS OF THIS AGREEMENT. THESE COSTS WILL BE DIFFICULT FOR itrac, LLC TO CALCULATE OR PREDICT WHEN SETTING SUCH FEES, CHARGES, AND ASSESSMENTS, BECAUSE itrac, LLC CANNOT KNOW IN ADVANCE: (A) IF CLIENT WILL PAY FOR SERVICE ON A TIMELY BASIS, IF EVER; (B) IF CLIENT MAKES A LATE PAYMENT, WHEN CLIENT WILL ACTUALLY PAY; OR (C) WHAT COSTS itrac, LLC WILL INCUR BECAUSE OF CLIENT’S POTENTIAL LATE PAYMENT, NONPAYMENT, OR OTHER CONTRACT BREACH. BOTH PARTIES AGREE THAT ANY SUCH LIQUIDATED DAMAGES FEES ARE NOT A PENALTY. CLIENT AGREES THAT itrac, LLC WOULD INCUR SUBSTANTIAL ECONOMIC DAMAGES IF CLIENT WERE TO VIOLATE THE AGREEMENT AND THAT LIQUIDATED DAMAGES REPRESENTS A FAIR, REASONABLE, AND APPROPRIATE ESTIMATE OF THE ACTUAL DAMAGES SUFFERED BY itrac, LLC.
(B) Schedule of Liquidated Damages for Late Payments, Declined Payments, or Payment Disputes: CLIENT SHALL BE LIABLE FOR THE FOLLOWING SCHEDULE OF LIQUIDATED DAMAGES: SERVICE SUSPENSION, TERMINATION, REINSTATEMENT, CHARGEBACK OR OTHER PAYMENT DISPUTE FEE, DECLINED PAYMENT FEE, AND/OR TRANSFER FEE: $250.00 PER HOUR OF SERVICE REQUIRED BY itrac, LLC TO RESOLVE THE MATTER. LATE PAYMENTS: CLIENT AGREES TO PAY LIQUIDATED DAMAGES EQUAL TO TWO PERCENT (2%) OF THE ORIGINAL CHARGE FOR ALL PAYMENTS MADE MORE THAN SEVEN (7) DAYS PAST THEIR CONTRACTUAL DUE DATE.