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Terms & Conditions
The Digital Services Agreement (“Agreement”), is between you, the person or entity requesting or using services (“Customer” “you” or “your”), and Spearhead Media, LLC (“Spearhead Media”).
Spearhead
Spearhead Media will design, develop create and provide a reasonable level of maintenance of a customized Website for Customer. As part of the design process, Spearhead Media will provide Customer with the option for a consultation with an appropriate Spearhead Media service representative to discuss creation of the Website for Customer. If no consultation is requested, the Website will be created based upon information provided to Spearhead Media by Customer via a completed questionnaire. Each Website may contain up to fifteen (15) pages of content (as determined by Spearhead Media in its sole discretion) as set forth in Section 4 of this Agreement. If Customer requires additional pages or content, Spearhead Media reserves the right to charge Customer for any additional services at Spearhead Media’s then current professional services rate.
A URL provided by Spearhead Media shall remain the property of Spearhead Media and is provided to Customer solely for the duration of their Spearhead® subscription. If Customer terminates this Agreement or cancels its Spearhead® subscription, the Spearhead Media URL will become inactive. Spearhead Media reserves the right to release or resell any URL that has become inactive due to termination of this Agreement.
Any Spearhead Media supplied URL will remain the property of Spearhead Media, unless the customer requests ownership and agrees to payment of a domain release fee that will subsequently be paid to Spearhead Media. Spearhead® is a subscription service offered in various arrangements of product features/functionality.
SEM, MOBILE ADVERTISING, AND DISPLAY ADVERTISING
For all SEM, Mobile Advertising, and/or Display Advertising Customers, Spearhead Media will create and manage a Campaign(s) targeted to specific marketing objectives agreed upon by Customer and Spearhead Media. Campaigns may be optimized to drive impressions, clicks (visitors), phone calls, form fills, and/or map views. Each Campaign may contain content as set forth in Section 4 of this Agreement.
SEM, Mobile Advertising, and Display Advertising are billed based on a weekly or monthly budget as set forth in a specific order in association with this agreement.
CONTENT, APPROVAL AND DELIVERY
Customer shall be responsible for providing the following content which shall be included on its Website, Business Listing, and/or other assets created in association with the Digital Services used: Business Name, Address, Phone Number, Industry/Category, Business License Number, if required, Featured Message or Promotional Offer, Business Description, Business Hours, Payment Methods Accepted, Contact Email, Website Address, Business Logo, Photos, and URL(s) to Customer’s social media pages, if any, and a list of Products/Services offered (“Customer Content”). FOR ANY LOGO or CONTENT, CUSTOMER IS SOLELY RESPONSIBLE FOR TRADEMARK, IF APPLICABLE.
All of Customer’s data, information, materials, records, scripts, content, and all other tangible or intangible property of Customer, regardless of format or medium and including, for example, text, pictures, photographs, diagrams, graphics, logos and videos of Customer, in each case to the extent provided to Spearhead Media by Customer in connection with the Customer Content is and shall remain the exclusive property of Customer to the extent provided by law. Customer hereby grants to Spearhead Media a nonexclusive, perpetual, worldwide, royalty-free license to use, store, reproduce, distribute, transfer and display such Customer Content solely in accordance with the terms of this Agreement in connection with Customer’s PowerSite® and related features. Customer shall procure, at its own expense, all necessary rights, licenses, clearances, permissions, waivers, releases and all other agreements and documentation necessary to permit use of the Customer Content by Spearhead Media, in connection with the Digital Services.
Customer bears sole responsibility for the final review and approval of all editorial, textual, deliverables, materials, including but not limited to scripts, printed material and content to ensure the accuracy, legality and completeness of all information used in association with the Digital Services. Spearhead Media may include or reject Customer Content provided by Customer to be used in association with the Digital Services in its sole discretion. Spearhead Media may also include certain licensed stock content in connection with Customer’s Digital Services. The stock content is owned by Spearhead Media and/or its licensor(s) and may not be modified, copied or otherwise used by Customer without the express written consent of Spearhead Media. Once a Website, Business Listing, and/or Campaign (“Assets”) is created or modified, Spearhead Media will notify Customer via email and make the Assets available Customer’s review and approval.
Unless approved by Customer within the one (1) week period following notification, Spearhead Media will deem the creation or modification of assets to be approved. Upon Customer’s approval or expiration of the one week notice period, the Website will be published to a Spearhead Media owned URL or, if Customer provides its own URL, delivered under such Customer’s URL, as applicable.
Under the process stated above, Customer’s final review and approval shall conclusively be presumed to have been given. Customer shall contact Spearhead Media immediately in the event any Customer Content or any other material should be removed from its assets.
Advertising, Coupons and Contests – Customer is solely responsible for any advertising or coupons placed on any assets, including but not limited to fulfilling any coupons or similar promotions provided by Customer and ensuring that such advertising, promotions and coupons comply with all applicable laws. Customer is solely responsible for any contest, sweepstakes, game of chance, or similar promotion on, via or in association or on any assets.
Privacy Policy – Customer’s Website must, at all times, contain a link to Spearhead Media’s privacy policy which shall be provided by Spearhead Media. Spearhead Media recommends that Customer obtain, post and implement its own privacy policy on the Website relative to the information that it collects on the Website, and which details how that information is used and/or retained by Customer (and how users may opt out from Customer’s collection/use of their information). Upon request, Spearhead Media may provide a sample privacy policy for Customer’s reference purposes. Spearhead Media provides this for information purposes only and is not legally responsible for its content. Notwithstanding the provision of a sample privacy policy, Customer is solely responsible for whether its privacy policy meets legal requirements and is advised to confirm with its own legal counsel that such privacy policy meets both state and federal laws. Customer is also solely responsible for the ongoing compliance with its privacy policy and shall regularly review its policy to ensure that it continues to accurately reflect Customer’s practices and its legal obligations. Additional information regarding privacy policies and practices can be found at the following:
1. SBA and FTC – You, Your Privacy Policy and COPPA
2. FTC Bureau of Consumer Protection Business Center – Privacy Resources for Business
3. FTC Guidance for Privacy Policies – Say what you mean, mean what you say
CALL TRACKING
As part of Customer’s subscription or use of the Digital Services, Customer has the option of receiving a license to one (1) complimentary call tracking phone number. Customer will receive a unique phone number and access to functionality that automatically forwards and records all calls received from their advertisements. This call tracking phone number shall remain the exclusive property of Spearhead Media and/or its licensor(s) and is provided to Customer free of additional charge during the term of this Agreement. Spearhead Media reserves the right to charge Customer $0.15 per minute for any use that exceeds 500 minutes of calling per month. Upon termination of this Agreement, the tracking number will be suspended and once deactivated, will be unavailable to Customer for future use.
As part of the call tracking number functionality, Customer has the ability to record calls on the call tracking number. Customer agrees that Spearhead Media and its service provider, may provide call tracking and recording service via telephone service provider’s networks. The service provider has granted Spearhead Media a non-exclusive license to offer, access, and manage these services, including Customer’s recorded calls and call tracking data, subject to the following terms and conditions:
1. Customer, Spearhead Media, and the service provider are each independent entities and none of them are the agent for the other.
2. Customer understands and acknowledges that calls from telephone numbers routed to its facilities will be electronically recorded for quality assurance purposes and that each inbound caller will be automatically notified of the recording.
3. Customer expressly agrees, acknowledges, and warrants that (i) Customer will provide written notice to all of their call handlers (employees or agents who might receive and answer such recorded calls) that the calls are recorded and may be monitored, stored or disclosed and (ii) Customer will obtain the prior, express written consent, of all call handlers to such recording before they are allowed to answer any calls and (iii) Customer will be solely responsible for providing and maintaining such notices and consents.
4. Customer agrees, acknowledges, and warrants that by using the call recording service, Customer has reviewed the legality of recording, monitoring and divulging telephone calls and the legality of the notice of recording and that neither Spearhead Media, nor its service provider, makes any representation or accepts any responsibility regarding the legality of recording, monitoring, or divulging telephone calls as it pertains to federal, state, and local laws.
5. Customer agrees, acknowledges and warrants that it has established proper procedures to protect the privacy of the callers and the call handlers and the data contained in the calls. In the event that the recording notification must be revised to comply with applicable law, Customer will promptly advise Spearhead Media of this fact, in writing.
ACCESS, UPDATING AND MAINTENANCE
As long as Customer’s account is current, Customer will be provided with unique login credentials (username and password) to enable direct access to its assets, including analytics dashboards and account/control panel. Using the credentials, Customer will be able to add, delete or modify content. Spearhead Media reserves the right to remove any content added by Customer that it deems inappropriate or in violation of any laws, statutes or regulations. Customer shall be responsible for maintaining security of its password. Spearhead Media will not change passwords to any account without proof of identification, which is satisfactory to Spearhead Media, which may include written authorization with signature. Under no circumstances will Spearhead Media be responsible for any damages, repairs or claims that may arise as a result of Customer’s (or any third party’s) access to Customer’s Website account/control panel or any changes made or content added, deleted, modified or altered by Customer or any third party to its Website. Customer’s access to the Website will include access to certain analytic tools and information concerning traffic and visitors that result from the use of the Digital Services. Use of any such information is solely for Customer’s use in connection with the Digital Services and no other purposes, and Customer shall use such tools and information in compliance with applicable laws, including without limitation, laws regarding privacy, consumer rights, and commercial dealings.
If Customer requires changes to any Assets or Customer Content associated with the Digital Services, such requests should be communicated to the Digital Services Team at 866-548-5076 or via email at support@Spearheadusa.com.
Updating and customization of Customer Content or Assets can be accomplished by Customer directly by logging in to specific dashboards and portals with the password and user information provided to Customer. If requested, Spearhead Media will provide Customer a reasonable level of updating and maintenance of the Customer Content and/or assets, including posting new content or otherwise modifying Customer Content and/or assets. Updating and site maintenance requests should be communicated to the Digital Services Team at 866-548-5076 or via email at support@Spearheadusa.com. If Customers requests to Spearhead Media for updating exceed more than four (4) hours of updating/customization per month, additional fees may apply.
FEES
In consideration for the Digital Services set forth herein, Customer will be charged a weekly, monthly, quarterly, or annual fee set forth in Spearhead Media’s invoice. Billing for the Digital Services shall be by a valid credit card acceptable to Spearhead Media or such other method acceptable to Spearhead Media. Your annual, monthly, weekly or other recurring periodic payments for the Digital Services will be automatically charged to the credit card provided by you at the time of your purchase or such other credit card on your account, with such payments being charged in advance, and you hereby agree that Spearhead Media is authorized to so charge your credit card or other selected payment method.
Spearhead Media, in its sole discretion, shall determine the prices it will charge for the Services, and the terms and conditions applicable to the same, and Spearhead Media may, amend such pricing and/or terms and conditions in accordance with terms set forth in this Agreement. If you do not agree to any such change, you may terminate this Agreement further in accordance with the Agreement, otherwise all such changes shall thereafter be effective with respect to your account, and you agree that we are authorized to charge your credit card for any new fees, on the next weekly, monthly, annual or other recurring periodic payment cycle (as applicable).
In addition to recurring service fee, Spearhead Media may charge set-up fees and other one-time fees as set forth on Spearhead Media’s website and/or described in the Agreement. These fees will be automatically charged to your credit card or other payment method, and you hereby agree that Spearhead Media is authorized to make such charge. All Fees are non-refundable. Past due invoices will accrue interest at the rate of 1.5% per month beginning with the date due and continuing until paid. If payments are not made within ten (10) days from the date due, Spearhead Media may, at its option and without limiting any other rights or remedies that may be available to Spearhead Media, including but not limited to termination of this Agreement and removal or suspension of any or all of the Digital Services, at Spearhead Media’s discretion, until such time as Customer’s account is current. In addition, if payments are not made when due, Customer will be responsible for all costs incurred by Spearhead Media in collecting such past due amounts, including, without limitation, reasonable attorney’s fees and costs whether or not litigation is filed. In the event Customer fails to timely pay Spearhead Media any amounts due and owing to Spearhead Media under this Agreement, Spearhead Media shall be entitled, in its sole discretion, to set off, recoup and apply any and all of Customer’s deposits and pre-payments previously paid to Spearhead Media under this Agreement, against such outstanding amounts owed by Customer to Spearhead Media under this Agreement.
Customer shall be responsible for the prompt payment, in the ordinary course of business any sales tax, value added tax, federal, state, or local tax or any other tax imposed by any governmental entity, with taxing authority over the services or any other items provided under this Agreement. Spearhead Media is not responsible for any such taxes.
TERMINATION
Your Digital Services will continue on a month to month basis, unless such term is modified by Spearhead Media in accordance with this Agreement, or unless either party notifies the other of termination or cancellation in accordance with this Agreement. You acknowledge and agree that in the event you do not desire to automatically renew your Services, it is your responsibility and obligation to contact Spearhead Media’s customer service center in writing to cancel your automatic renewal. Your failure to cancel your automatic renewal shall be deemed acceptance of the renewal term. Subject to your obligation to pay any outstanding fees, if any, you may cancel your Digital Services at any time. To cancel your Digital Services you must contact Spearhead Media’s customer service center in writing from an authorized account contact with at least 30 days advance notice for the next renewal period and request cancellation.
Notwithstanding anything to the contrary in the Agreement and without limiting any right or remedy of Spearhead Media contained in the Agreement, Spearhead Media may suspend or terminate your Digital Services, suspend your access and password, remove your Digital Services from Spearhead Media’s servers, or remove any content within the Digital Services, if Spearhead Media concludes, in its sole and exclusive discretion, that you (i) have breached, violated, or acted inconsistently with the letter or spirit of the Agreement, or any other applicable term, condition, rule, policy or any applicable law or regulation; (ii) have provided false information as part of your account information; (iii) have failed to keep your account information complete, true, and accurate; (iv) fail to respond to any email communication sent to the email address listed in your account information; (v) are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; (vi) are engaged in activities or sales that may damage the rights or reputation of Spearhead Media or others; or (vii) engage in any activity, whether or not intentionally, that threatens the stability or security of Spearhead Media’s network, servers, or other services, in Spearhead Media’s sole discretion (each “Termination for Cause”). Any Termination for Cause by Spearhead Media will take effect immediately, and you expressly agree that you will not have any opportunity to cure. In addition, Spearhead Media may terminate your Digital Services at any time without cause upon notice to you. Your sole and exclusive remedy for such termination of your Digital Services without cause will be a refund of your Digital Services fees for the then current term. Upon any termination of your Digital Services or this Agreement for any reason, any provision which, by its nature or express terms should survive, will survive such termination
OWNERSHIP
Customer retains all rights to Customer Content to the extent provided by law. Spearhead Media will retain all rights, title and interest in Spearhead Media provided URL, call tracking number, video slideshow, stock content, all methodologies, knowhow, processes, technologies, software (including related source code, object code and documentation, tools, devices, computer system designs, documentation, ideas, trade secrets, data, discoveries or inventions (whether or not patentable), products, user interfaces, database structure and other materials and information utilized by Spearhead Media, in the performance of its services under this Agreement or in connection with the Digital Services. Spearhead Media’s ownership includes, without limitation, the Website itself (excluding Customer Content).
REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to Spearhead Media that (a) you own all rights, title and interest in and to the Customer Content, or that you otherwise have the right to use such Customer Content and to grant Spearhead Media a license to use such Customer Content; (b) the Customer Content does not and will not infringe, violate or misappropriate the rights, property or privacy or rights of personality of any third party, (c) shall be free of viruses, worms, Trojan horses, spyware and other malicious code; (d) shall be compliant with all applicable laws; and (e) represent and warrant that, if you are an individual, you are 18 years old or older or, if you are an entity, that you are a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing and licensed if required where conducting business with all legal authority and power to enter into and you are authorized to enter into this Agreement. You further warrant and represent that your use of the Digital Services and all related features will at all times comply and be carried out in compliance with all applicable federal, state and other jurisdictional laws, regulations, statutes and governmental rules. Prohibited Uses: Customer represents and warrants that it will not (or permit others) to post, transmit, retransmit or store material on or through the assets which: (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity, (iii) violates any right of privacy or right of personality, violates any federal fair housing regulations, or (iv) violates the rights of any person or entity, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other software products or content that are not appropriately licensed by Customer. Spearhead Media, in its sole judgment, may remove any content that it deems is or may be inconsistent with these requirements. Spearhead Media has no obligation to design, develop, host, market or advertise any assets containing content that in Spearhead Media’s sole judgment is offensive, inappropriate or unlawful, including, without limitation, any “adult content,” content promoting violence of any kind, including any intolerance for race, lifestyle, or faith, and/or that constitutes terrorist threats, harassment, hate, defamation, libel, slander or otherwise violates or infringes the rights of any third party, or that is unlawful, deceptive or misleading or promotes the commission of a crime or any unlawful conduct. Spearhead Media shall have the right, in its sole discretion, to refuse and/or terminate this Agreement and any related services and may refuse to do business with any person or entity without liability and without explanation.
INDEMNITY
Customer agrees to indemnify and hold harmless, Spearhead Media and subsidiaries and affiliates, and their respective employees, directors, shareholders, members, officers, agents, from any and all claims, allegations, losses, damages, liabilities and expenses (including attorneys’ fees) actually or allegedly related to or arising out of your use of the Digital Services, including, without limitation: (a) any breach of your warranties, representations, obligations or the terms of this Agreement; (b) the Customer Content, including, without limitation, any claims of any infringement, or, misappropriation of the Customer Content; (c) claims that the Customer Content violates the rights of any third party, including, without limitation, any intellectual property rights (unless such violation is attributable solely to Spearhead Media provided content or technology) or any privacy right or right of personality; and (d) any claims made by any third parties (including customers of Customer) related to allegations of false advertising, coupons, promotions or relating to any information, materials, products or services provided by Customer through the Digital Services or otherwise.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY APPLICABLE LAW ALL DIGITAL SERVICES, INCLUDING BUT NOT LIMITED TO, ANY SAMPLE PRIVACY POLICIES PROVIDED BY Spearhead MEDIA ARE PROVIDED ON AN “AS IS” AND “AS PROVIDED” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO AVAILABILITY OF THE WEBSITE OR SERVICES, COMPLETENESS, ACCURACY OR TIMELINESS OF INFORMATION, NON-INFRINGEMENT, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, AND SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY Spearhead MEDIA. Spearhead MEDIA MAKES NO WARRANTIES EXPRESS OR IMPLIED REGARDING ITS SEM OFFERING, INCLUDING BUT NOT LIMITED TO THE EXTENT OF ANY INCREASED WEB TRAFFIC THAT MAY OR MAY NOT RESULT FROM SUCH SERVICES.
NEITHER Spearhead MEDIA NOR ITS EMPLOYEES, CONTRACTORS, VENDORS, AFFILIATES AND/ OR LICENSORS SHALL BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH ANY ACTION OR OMISSION IN CONNECTION WITH THIS AGREEMENT OR OUT OF ANY BREACH OF ANY WARRANTY, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF Spearhead MEDIA OR ITS EMPLOYEES, CONTRACTORS, VENDORS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF Spearhead MEDIA, ITS EMPLOYEES, CONTRACTORS, VENDORS AND/ OR LICENSORS AND YOUR EXCLUSIVE REMEDY IN CONNECTION WITH ANY SERVICES OR ANY BREACH OF THIS AGREEMENT IS LIMITED TO ANY AMOUNTS ACTUALLY PAID BY YOU TO Spearhead MEDIA DURING THE TWELVE-MONTH PERIOD PRIOR TO THE CLAIM.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. Spearhead MEDIA DOES NOT REPRESENT THAT THE HOSTING SERVICES, ACCESS TO THE ASSETS OR FUNCTION OF THE DIGITAL SERVICES WILL BE UNINTERRUPTED OR ERROR, BUG OR VIRUS FREE AND NEITHER Spearhead MEDIA NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY LOST OR CORRUPTED DATA. PROCESSING ERRORS, COMMUNICATIONS DIFFICULTIES, AND/OR ANY INTERRUPTION AND OR FAILURE OF DELIVERY OF ANY OF THE SERVICES OFFERED BY Spearhead MEDIA. Spearhead MEDIA SHALL NOT BE RESPONSIBLE FOR ANY ALTERATIONS, MODIFICATIONS, DELETIONS AND THE LIKE TO THE WEBSITE OR SERVICES. IN NO EVENT SHALL Spearhead MEDIA (OR ITS OWNER, DIRECTORS, OFFICERS, AGENTS, AFFILIATES AND EMPLOYEES) BE LIABLE FOR ANY CUSTOMER CONTENT OR ANY OTHER WORD OR IMAGE PRODUCED FOR THE CUSTOMER, OR ASSOCIATED WITH THE CUSTOMER OR THE CUSTOMER’S BUSINESS.
Spearhead MEDIA SHALL NOT BE RESPONSIBLE FOR (A) UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, (B) ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR (C) ANY TRANSACTIONS ENTERED INTO THROUGH ANY SERVICE OR WEBSITE PROVIDED BY Spearhead MEDIA HEREUNDER. Spearhead MEDIA IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY ON OR THROUGH ANY WEBSITE PROVIDED BY Spearhead MEDIA HEREUNDER OR ANY INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANOTHER’S RIGHTS BY A THIRD PARTY, INCLUDING INTELLECTUAL PROPERTY RIGHTS. YOU SPECIFICALLY AGREE THAT Spearhead MEDIA IS NOT RESPONSIBLE FOR ANY CONTENT SENT, PROVIDED OR POSTED BY YOU OR ANY THIRD PARTY INCLUDING BUT NOT LIMITED TO ANY LINKS TO THIRD PARTY MATERIAL.
CONFIDENTIALITY
Each party may receive or have access to commercially or personally valuable technical and non-technical confidential or proprietary information (“Confidential Information”) of the other party. Confidential Information of Customer includes its registration and financial information. Confidential Information of Spearhead Media includes all business and technical information that is not generally known or available to others. Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. Notwithstanding the foregoing, the confidentiality obligations set forth herein shall not apply to any portion of any information which: (a) is now in the public domain, or hereafter enters the public domain through no action of the receiving party or any of its representatives; (b) can be shown to have been known to the receiving party or its representatives at the time it is received; (c) is hereafter rightfully furnished to the receiving party by a third party without violation of any restriction on disclosure; or (d) is independently developed by the receiving party without reference to any Confidential Information of the other party. The recipient acknowledges that the information disclosed may constitute proprietary information and trade secrets of the disclosing party. In the event of wrongful disclosure, monetary damages may be insufficient to protect and compensate the disclosing party and it shall be entitled to injunctive relief. This Section 13 regarding Confidentiality shall survive expiration or termination of this Agreement.
RELATIONSHIP OF THE PARTIES
In performing Services for the Customer under this Agreement and all Schedules, Spearhead Media is acting at all times as an independent contractor and not as an agent or employee of the Customer. Neither this Agreement nor any Schedule shall be deemed to constitute a partnership or joint venture arrangement between Spearhead Media and Customer.
FORCE MAJEURE
Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or In performing Services for the Customer under this Agreement and all Schedules, Spearhead Media is acting at all times as an independent contractor and not as an agent or employee of the Customer. Neither this Agreement nor any Schedule shall be deemed to constitute a partnership or joint venture arrangement between Spearhead Media and Customer.
GOVERNING LAW & ENTIRE AGREEMENT
This Agreement shall be governed by the laws of the State of California without giving effect to principles of conflict of laws. Any action to enforce this Agreement or any matter relating to your use of the Digital Services shall be brought exclusively in the State and Federal Courts located in Los Angeles County, California and customer agrees to such jurisdiction and venue. This Agreement, including any orders integrated herewith from time to time shall be the entire agreement and understanding between the parties in connection with the subject matter hereof. This Agreement supersedes and replaces all prior agreements, terms or conditions between the parties and any other oral or written communications as they pertain to this Agreement.
MISCELLANEOUS
In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. The failure of Spearhead Media to insist upon or enforce strict performance by Customer, of any provision of this Agreement shall not be construed as a waiver or relinquishment of its right to enforce any such provision or right in any other instance. You may not assign or transfer this Agreement or any rights hereunder without Spearhead Media’s prior written consent, and any attempt to the contrary is void. The terms and conditions set forth in this Agreement are subject to updates from time to time by Spearhead Media. In the event of an update, Customer will be provided with notice of the update in advance whenever possible via email sent to the email address provided by Customer above. All changes or updates to this Agreement will take effect no sooner than five (5) days of sending the email (unless a change is required as a result of applicable laws, regulations, or required software update in which case, the change may be effective immediately). If Customer does not agree to the changes, Customer may terminate the Agreement by providing notice to Spearhead Media as indicated in Agreement.
CERTAIN DEFINITIONS
Definition of terms as used herein:
“Digital Services” refers to all services that Spearhead Media may provide to Customer in association with this Agreement.
“Spearhead®” refers to an all-inclusive Website hosting, creation, maintenance and marketing service that help clients establish their brand, promote their business, track leads, and measure success.
“Website” refers to the Customer’s specific Website (including but not limited to all features, web pages, functionality, URLs, and any software code), that is created, designed, hosted and maintained by Spearhead Media as part of the Spearhead® service.
“SEM” refers to the full-service management of the Customer’s paid search advertising campaigns on Google, Yahoo!, and/or Bing search engines and associated digital content networks on all desktop and mobile devices.
“Mobile Advertising” refers to the full-service management of the Customer’s interactive advertising campaigns served to a network of mobile applications and Websites targeted to a specific DMA, geography, or custom geo-fence.
“Display Advertising” refers to the full-service management of the Customer’s interactive advertising campaigns served to a network of Websites targeted based on content, demographics, and geographies.
“Campaign” refers to the Customer’s specific advertisements and associated keywords, landing pages, or other content created and managed by Spearhead Media as part of the SEM, Mobile Advertising, or Display Advertising services.
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