BY SIGNING UP, MAKING THE FIRST PAYMENT AS PART OF THE ORDERING PROCESS THAT REFERS TO THIS AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF MEDIA SPEARHEAD ONLINE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OF SOFTWARE COMPONENTS ON A HOSTED BASIS AND ASSOCIATED SUPPORT OPTIONS (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
Subject to the terms of this Agreement, Media Spearhead will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, and/or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Media Spearhead website incorporated by reference herein, including but not limited to Media Spearhead privacy and security policies. For reference, a Definitions section is included at the end of this Agreement. Media Spearhead offers multiple services with products within. This Agreement governs all products and services offered by Media Spearhead.
1. Privacy & Security; Disclosure
Media Spearhead privacy and security policies may be viewed online on the Media Spearhead website (the “Site”). Media Spearhead reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Non-Media Spearhead clients who receive communications may “opt out” of receiving future marketing and other communications from Media Spearhead. Media Spearhead clients and partners will not have the option of opting out unless they terminate their account with Media Spearhead in accordance with the terms of this Agreement. Media Spearhead reserves the right to disclose who its clients and partners are, including disclosure on the Site and in its marketing materials.
2. License Grant & Restrictions
Media Spearhead hereby grants you a non-exclusive, non-transferable, limited, revocable, worldwide right to use the Service during the License Term, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. In the event that your online ordering process or your Order Confirmation provided for a specific number of Users, your license to use the Service is limited to the specified number of Users. All rights not expressly granted to you are reserved by Media Spearhead and its licensors. You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking, reverse engineering, or other competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, Media Spearhead Technology or the Media Spearhead Content in any way; (ii) modify or make derivative works based upon the Service, Media Spearhead Technology or the Media Spearhead Content; (iii) embed the Service as a “iframe” or “frame” from within another application; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using ideas, features, functions or graphics that are similar to those related to the Service, or (c) copy any ideas, features, functions or graphics of the Service. The Service cannot be shared or used by more than one individual unless (and solely to the extent that) the Order Confirmation allows for sharing within your internal organization. Sharing of the Service outside your organization is never allowed. The proper assignment of username and passwords for the Service and adherence to all terms of this Agreement and Order Confirmation are your sole responsibility. You are responsible for maintaining the confidentiality of your usernames, passwords and accounts. Usernames and passwords may not be shared by more than one individual, and may not be transferred from one individual to another unless the original User no longer requires, and is no longer permitted, access to the Service. You may use the Service only for your internal business purposes and shall not: (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein, or Media Spearhead sites, servers or networks; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; or (iv) take any action that imposes an unreasonably or disproportionately large load on Media Spearhead infrastructure. Media Spearhead shall be entitled to adjust the scope of the Service and the underlying technical infrastructure to reflect the continuing development of the Service and technical advances.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Media Spearhead immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Media Spearhead immediately and use best efforts to stop immediately any copying or distribution of Media Spearhead Content that is known or suspected by you or your Users; (iii) not impersonate another Media Spearhead user or provide false identity information to gain access to or use the Service; (iv) not use the Service to defame, abuse, harass, threaten or otherwise violate the legal right of others; (v) not publish, post, upload, email, distribute or disseminate any defamatory, misleading, infringing or unlawful content; and (vi) not collect, store or transmit personal information about individuals or any information that is subject to applicable privacy laws or regulations.
You are solely responsible for all text, logos and images (“Client Content”), all advertisements and any web site reachable from the advertisements generated using the Service. You hereby represent, warrant and covenant to Media Spearhead and its third party suppliers that (i) any Client Content you provide is and shall be accurate, complete and current, (ii) you have all necessary rights and are fully authorized to publish the Client Content and create or have created advertisements, and (iii) all Client Content complies with the requirements set forth by Google, Microsoft and Facebook on their respective websites with respect to the Google Ads, Microsoft adCenter and Facebook Ads programs, as the case may be, including the trademark policies, editorial guidelines and creative limitations posted therein, and including such other websites and programs as may be included in the Service from time to time. You hereby authorize Media Spearhead to allow such Client Content and advertisements to be published throughout the network of advertising channels operated by Microsoft, Google, Facebook and any other company network included in the Service from time to time, and their network of participating websites and other distribution outlets. You further represent, warrant and covenant to Media Spearhead and its suppliers that (a) at all times you shall comply with all applicable law, (b) you will not generate, or encourage others to generate, automated or fraudulent impressions or clicks of advertisements on any Google, Microsoft, Facebook or other advertising network, (c) you are responsible for obtaining and maintaining accounts for use of the Google Ads program, Microsoft adCenter program, Facebook Ads program and any other applicable program (collectively, “Advertising Platforms”), (d) your use of the Advertising Platforms is not for personal, family or household purposes, and (e) your advertisements do not and will not advertise illegal activity or constitute illegal or fraudulent business practices in the jurisdiction in which the advertisements are displayed.
Further, you acknowledge and agree that Microsoft, Google, Facebook and/or any other search engine company included in the Service may, in its sole discretion, (i) edit your Client Content for size and fit purposes, (ii) label any advertisement as a “sponsored site,” “advertisement” or similar designation for clarification purposes, (iii) create advertisements based upon the Client Content and other specifications provided by Media Spearhead through the applicable API, and (iv) create, delete, modify and optimize your account.
Media Spearhead does not own any Client Content or advertisements provided by you hereunder, provided that you hereby grant Media Spearhead a worldwide, royalty-free, non-exclusive right to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Client Content and advertisements for the sole purpose of providing you with the Service.
You are solely responsible for all URLs required or used by you in connection with the Service. Any URL that includes or incorporates any variation of the name Media Spearhead (a “Media Spearhead URL”) shall (i) be owned by Media Spearhead, (ii) require the consent of Media Spearhead prior to your use, and (iii) only be used by you during the Term of this Agreement. Any URL used by you in connection with the Service that does not include or incorporate the name Media Spearhead shall be owned by you. For the avoidance of doubt, you are solely responsible for all Client Content provided or published by you in connection with the Service under any URL (including any Media Spearhead URL).
4. Account Information and Data
Media Spearhead does not own any keyword data, information, performance data, paid search campaigns or material that you submit to the Service in the course of using the Service (collectively, “Client Data”). You hereby grant Media Spearhead a worldwide, royalty-free, non-exclusive right during the License Term to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Client Data for the sole purposes of (i) processing your Client Data in connection with providing the Service to you, and (ii) storing or hosting the Client Data in a remote database or on the Site for access by your Users. Your private Client Data is accessible only to you and persons explicitly authorized by you; data is NOT shared with other clients, or with any other third party; provided that Media Spearhead reserves the right to use your Client Data in order to compile, analyze and disclose to third parties aggregated metrics, data and trends related to the use of its offerings as long as such metrics, data and trends do not contain uniquely identifiable Client Data. You, not Media Spearhead, shall have sole responsibility for the accuracy, quality, integrity, legality, appropriateness, and intellectual property ownership or right to use all Client Data, and Media Spearhead shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data. Use of the Service is subject to existing laws and legal processes. Nothing contained in this Agreement will limit Media Spearhead right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service, which may include disclosing your Client Data to the applicable authorities.
You are and shall remain the owner of all accounts with Advertising Platforms. Media Spearhead is not a party to the financial relationship between you and the Advertising Platforms. Any fees charged by Media Spearhead are for its software and Service offerings only. Individual Advertising Platforms may provide financial incentives, sales contests and other incentive programs to Media Spearhead on the basis of client satisfaction, ad spend under management, and/or other key metrics influenced by the Media Spearhead software and Service, and Client Data is a part of these calculations. In no event shall any Advertising Platform incentive program provided to Media Spearhead impact the financial terms or relationship that you enjoy directly with the Advertising Platforms.
If Media Spearhead processes any personal data (as such term is defined in the General Data Protection Regulations) on your behalf when performing its obligations under this agreement, the parties record their intention that the owner of Client Data (whether the Client or a third party) will, for the purposes of the General Data Protection Regulations, be the data controller and that Media Spearhead will be a data processor, and in such case:
(b) the Client warrants that it is entitled to grant Media Spearhead access to the relevant personal data so that Media Spearhead may lawfully process the personal data in accordance with this agreement on the Client’s behalf; and
(c) the Client warrants that it will ensure the relevant data subject (as such term is defined in the General Data Protection Regulations) has been informed of, and has given his/her consent to, such processing by Media Spearhead as required by all applicable data protection legislation.
5. Intellectual Property Ownership
Media Spearhead alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Media Spearhead Technology, the Media Spearhead Content and the Service and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service, and any aggregated metrics, data and trends compiled by Media Spearhead. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Media Spearhead Technology or the Intellectual Property Rights owned by Media Spearhead, Inc. The Media Spearhead name, the Media Spearhead logo, and the product and service names associated with the Service and Media Spearhead Content are trademarks of Media Spearhead or third parties, and no right or license is granted to use them hereunder. The Site may include trademarks, service marks or logos of third parties, all of which are the property of their respective owners. In addition, all content published on the Site belongs to Media Spearhead and/or its licensors under applicable copyright law. The Parties and each of their respective affiliates shall not make, directly or indirectly, or cause others to make, any disparaging comments about each other or each other’s affiliates.
6. Third Party Interactions
During use of the Service, you may enter into correspondence with, or purchase or sign up to receive goods and/or services from, a third party, or you may participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third party. Media Spearhead and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party, including any termination by such third party of their provision of goods or services to you. Media Spearhead does not endorse any sites on the Internet that are linked through the Service and does not endorse any third party goods or services that are made available to you as a result of your use of the Service. Media Spearhead provides these links to you only as a matter of convenience, and in no event shall Media Spearhead or its licensors be responsible for any content, products, or other materials on or available from such sites. Media Spearhead provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services. Service features that interoperate with the Google Ads, Microsoft adCenter, Facebook Ads or other third party programs depend on the continuing availability of the Google Ads, Microsoft adCenter, Facebook Ads or other third party, as the case may be, application programming interface (“API”) and program for use with the Services. If Google Inc. or its affiliates (“Google”), Microsoft, Inc. or its affiliates (“Microsoft”), Facebook, Inc. or its affiliates (“Facebook”), or any other applicable third party ceases to make the Google Ads API or program, Microsoft adCenter API or program, Facebook Ads API or program, or other third party API or program, as the case may be, available on reasonable terms for the Services, Media Spearhead may cease providing such Service features and you shall have no payment obligations to Media Spearhead with respect to such Service features for periods following such cessation.
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current price of the chosen edition of the Service at the fee currently in effect. All fees based off of PPC spend shall be based upon your aggregate PPC spend across all search engine marketing programs managed by Media Spearhead, including without limitation Google Ads, Microsoft adCenter and Facebook Ads. All payments must be made in advance. Payments may be made on a monthly, annual or one-time basis, and amounts owed are payable via automated recurring credit card payment or electronic invoices. All payment obligations are non-cancelable and all amounts paid are non-refundable. You must provide Media Spearhead with a valid credit card or annual or one-time prepayment as a condition to signing up for the Service. You hereby represent that you are authorized to provide any credit card you use to sign up for the Service. An authorized License Administrator may adjust the Service edition by executing an additional written Order Confirmation or using the web-based client administration system within the Media Spearhead product if it applies. Changes to the Service edition will result in an adjustment to your fees, and will be subject to the following: (i) the term for the new fees and new Service edition will be coterminous with the preexisting License Term (either Initial Term or Renewal Term, as the case may be); (ii) Service fees will be the then current, generally applicable license fee; (iii) any fee increase that results from changes made in the middle of a billing month will be charged in full on a pro-rated basis for the portion of the billing month following such change; and (iv) any fee reduction that results from changes made in the middle of a billing month will not take effect until the next billing month and no partial refunds will be given. Media Spearhead reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are the confidential information of Media Spearhead, and you agree not to disclose them to any third party.
8. Billing and Renewal
Media Spearhead charges and collects in advance for use of the Service. Media Spearhead will automatically renew your subscription as described below, and bill your credit card or submit electronic invoices as mutually agreed upon. The renewal charge will be equal to the Service fee in effect during the prior term, unless Media Spearhead has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Media Spearhead fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Media Spearhead income. You agree to provide Media Spearhead with complete and accurate billing and contact information. This information includes your legal entity name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Media Spearhead reserves the right to terminate your access to the Service in addition to any other legal remedies. All invoices and payments to Media Spearhead will be in US $. If you believe your invoice is incorrect, you must contact Media Spearhead in writing within 45 days of the date of the invoice setting forth details regarding the inaccuracy to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to Media Spearhead herein, Media Spearhead reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). You will continue to be charged for the Service during any period of suspension. If you or Media Spearhead initiates termination of this Agreement, you will be obligated to pay the balance due on your account for the applicable Initial Term or Renewal Term, as the case may be, computed in accordance with the Charges and Payment of Fees section above. You agree that Media Spearhead may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. Media Spearhead reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Media Spearhead has no obligation to retain Client Data or Client Content and that such Client Data and Client Content may be irretrievably deleted if your account is 30 days or more delinquent.
This Agreement commences on the Start Date otherwise known as “the sign up date”. For all editions or versions of the product, the “Initial Term” will be as you elect during the online subscription process or as otherwise mutually agreed upon in the Order Confirmation. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) (each, a “Renewal Term”) unless either party gives Sufficient Written Notice or unless earlier terminated as set forth in this Agreement. “Sufficient Written Notice” will be fifteen (15) days prior to the expiration of the Initial Term or applicable Renewal Term, unless otherwise agreed in the Order Confirmation. Fees payable to Media Spearhead for each Renewal Term shall be Media Spearhead then current fees. In the event this Agreement expires or is terminated for any reason, you agree to extract your Customer Data and Customer Content from the Media Spearhead platform prior to the effective date of such expiration or termination. You agree and acknowledge that Media Spearhead has no obligation to retain the Client Data or Client Content, and may delete such Client Data and Client Content 30 days after expiration or termination. Upon any expiration or termination of this Agreement, your rights to use any Media Spearhead URLs shall immediately terminated. The following sections shall survive any expiration or termination of this Agreement: 1, 3, 4, 5, 7, 9, 10 and 13 – 24.
11. Termination for Cause
Any breach of your payment or other material obligations or unauthorized use of the Media Spearhead Technology or Service will be deemed a material breach of this Agreement. Without limiting its ability to pursue other remedies, Media Spearhead, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
Media Spearhead represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service, during the Initial Term or each Renewal Term, will perform substantially in accordance with the online Media Spearhead help documentation (as may be updated from time to time) under normal use and circumstances. In the event the Service fails to perform substantially in accordance with such help documentation, and you promptly notify Media Spearhead, Media Spearhead will modify the Service and/or the documentation so that it conforms. The foregoing is your sole and exclusive remedy for Media Spearhead failure to satisfy the foregoing representation.
13. Disclaimer of Warranties
MEDIA SPEARHEAD AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. MEDIA SPEARHEAD AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, LEADS OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY MEDIA SPEARHEAD AND ITS LICENSORS.
14. Mutual Indemnification
You shall indemnify and hold Media Spearhead, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Client Data or the Client Content infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; (iii) a claim arising from the breach by you or your Users of this Agreement; or (iv) any use or alleged use of your accounts or your passwords by any person, whether or not authorized by you, provided in any such case that Media Spearhead (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Media Spearhead of all liability and such settlement does not affect Media Spearhead business or Service); (c) provides to you all reasonably available information and assistance; and (d) has not compromised or settled such claim. Media Spearhead shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Service directly and knowingly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided that you (a) promptly give written notice of the claim to Media Spearhead; (b) give Media Spearhead sole control of the defense and settlement of the claim (provided that Media Spearhead may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Media Spearhead all reasonably available information and assistance; and (d) have not compromised or settled such claim. Media Spearhead shall have no indemnification obligation, and you shall indemnify Media Spearhead pursuant to this Agreement, for claims arising from any infringement arising from the modification of the Service by you or any third party not authorized by Media Spearhead or the combination of the Service with any of your products, services, hardware or business process(es). If as a result of any infringement by the Service (other than as described in the preceding sentence) your use of the Service is enjoined by a court of law, Media Spearhead will either modify the Service to make it non-infringing, acquire a license for you to continue using the Service, or if neither option is possible, terminate this Agreement and refund to you on a pro-rate basis the applicable fees paid by you to Media Spearhead in advance as of the effective date of termination.
15. Internet Delays
MEDIA SPEARHEAD SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MEDIA SPEARHEAD IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
IN NO EVENT SHALL MEDIA SPEARHEAD AGGREGATE LIABILITY EXCEED THE GREATER OF (I) AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO MEDIA SPEARHEAD IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (II) $2,500.00. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, THE MEDIA SPEARHEAD TECHNOLOGY OR CONTENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the disclaimers set forth above may not apply to you.
18. Local Laws and Export Control
The Service provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of other applicable countries. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States or any other applicable country maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and other applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Media Spearhead and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Media Spearhead Content or Client Content contrary to United States or other applicable law is prohibited. None of the Media Spearhead Content or Client Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government and other applicable governmental bodies for such purposes.
Media Spearhead may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Media Spearhead account information. Such notice shall be deemed to have been given upon the expiration of 12 hours after sending via email. You may give notice to Media Spearhead (such notice shall be deemed given when received by Media Spearhead) at any time via electronic mail, addressed to the attention of: VP of Finance.
20. Modification to Terms
Media Spearhead reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement available at all times on the Site. Continued use of the Service after any such changes shall constitute your consent to such changes.
21. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Media Spearhead but may be assigned without your consent by Media Spearhead to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Media Spearhead directly or indirectly owning or controlling 50% or more of you shall entitle Media Spearhead to terminate this Agreement for cause immediately upon written notice.
22. Non Solicitation
During the term of this Agreement and for a period of two (2) years following the effective date of the termination of this Agreement, neither party shall directly or indirectly, for itself or for any other person, firm, corporation, partnership, association or other entity induce or attempt to induce any employee of the other party to leave employment with the other party or, or in any way interfere with the relationship between the other party and any employee thereof hire or employ or enter into any contractual arrangement with any employee or former employee of the other party. In the event of a breach of the foregoing, the breaching party agrees to pay the non-breaching party a liquidated damages amount equaling one (1) year of fully loaded salary and benefits for the solicited employee.
This Agreement shall be governed by Florida law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Miami, Florida. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Confirmation, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Media Spearhead as a result of this Agreement or use of the Service. The failure of Media Spearhead to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Media Spearhead in writing. This Agreement, together with any applicable Order Confirmation, comprises the entire agreement between you and Media Spearhead and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. In the event that any of your Users are contractors to your organization, you agree that such contractors shall be required by written agreement to comply with all applicable restrictions set forth in this Agreement, and you shall be fully liable for and indemnify Media Spearhead with respect to any failure of any contractor to so comply.
As used in this Agreement now or hereafter associated herewith: “Start Date” or “Sign Up Date” means the earlier of either the date this Agreement is accepted by making an online payment via our payment provider; “Initial Term” means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “License Administrator(s)” means those Users designated by you who are authorized to purchase licenses online through the Site or by executing written Order Confirmations and to create User accounts and otherwise administer your use of the Service; “License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Confirmation(s); “Order Confirmation(s)” means the form evidencing the initial subscription for the Service and any subsequent Order Confirmations submitted online through the Site or in written form, specifying, among other things, the number of Users, if applicable, and other services contracted for, the applicable fees, the billing period, the payment method, and other charges as agreed to between the parties, each such Order Confirmation to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Confirmation, the terms of the Order Confirmation shall prevail); “Media Spearhead” means Media Spearhead, Inc., having its principal place of business at 2650 Mosley Rd
Orange Park, Florida 32065, United States; “Media Spearhead Technology” means all of Media Spearhead proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Media Spearhead in providing the Service; “Service(s)” means the specific edition of Media Spearhead online search engine marketing services, developed, operated, and maintained by Media Spearhead, accessible via https://mediaspearhead.com/ or another designated web site or IP address, and any ancillary online or offline products and services provided to you by Media Spearhead, to which you are being granted access under this Agreement, including without limitation the Media Spearhead Technology, the Media Spearhead Content and any support services agreed to by Media Spearhead; “User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Media Spearhead at your request). “Media Spearhead Content” means any thought leadership published or otherwise made available by Media Spearhead, including without limitation white papers, blog content, newsletters and any other publications.
Questions or Additional Information
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to https://mediaspearhead.com/contact/.