This Terms of Service Agreement – Paid Advertising (“Agreement”) provides the terms and conditions pursuant to which Easton Digital, LLC, an Ohio Limited Liability Company (“Easton Digital”) will provide Paid Advertising Services (defined herein) to Client. As used in this Agreement, “Client” means a natural person or legal entity (such as a corporation, limited liability company, firm, partnership or other entity recognized at law) who subscribes for and receives the Services, together with such person or entity’s affiliates, subsidiaries, successors and assigns.

 

THE PAID ADVERTISING SERVICES ARE OFFERED TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY RECEIVING OR USING ANY OF THE PAID ADVERTISING SERVICES, IN WHOLE OR IN PART, CLIENT AGREES TO ENTER INTO THIS AGREEMENT.

 

1. Paid Advertising Services. In consideration of the promises of Client set forth herein (including without limitation Client’s payment of the consideration for the Paid Advertising Services as herein provided), Easton Digital will provide Client with advertising services intended to promote Client and/or Client’s business through search engine marketing directed to online search engines such as Google®, Yahoo!®, and Bing® and online display advertising through online publishers such as Google® Ads Display Network, Facebook® and Twitter® (all such services, collectively, “Paid Advertising Services”). Paid Advertising Services may involve Easton Digital providing Client with statistical data concerning the effectiveness of the Paid Advertising Services in a given period (“Tracking Information”). In connection with the delivery of the Paid Advertising Services, Easton Digital will deliver detailed reports to Client (the “Performance Reports”). Easton Digital will use commercially reasonable efforts to effectuate placement of Client’s advertising in geographic location(s) identified by Client in the sign-up process, provided however, that Easton Digital does not guarantee that such advertising will be displayed in such target locations.

 

Client acknowledges that Easton Digital provides other services to its clients, such as website development or design services. Such other services, if applicable to Client, and are covered by separate terms of service agreements between Easton Digital and Client and are not covered by this Agreement.

 

 2. Term. The term of this Agreement shall commence on the date the client paid the Account Restructure Fee and shall continue until terminated by either party. Easton Digital will provide the Services to Client on an initial four month contract basis and then a month to month contract basis (during which Services are provided to Client here under is referred to herein as a “Subscription Period”). A one-time Account Restructure Fee and the first Subscription Period installment payment is due to Easton Digital on sign-up via credit card. Easton Digital reserves the right to charge the Account Restructure Fee and first Subscription Period in separate installments. Installment payment amounts are subsequently billed and collected each calendar month on or near the day of the month that coincides with the day of month when the first Subscription Period installment was paid.

 

 3. Authorization. Client authorizes Easton Digital to act on Client’s behalf as Client’s google shopping marketing provider during the initial Subscription Period and all renewal Subscription Periods, with respect to all Services provided by Easton Digital hereunder.

 

 4. Campaign Charges and Fees. Client agrees to pay the following amounts in furtherance of the Paid Advertising Services in accordance with the payment procedures set forth.

   a. Campaign Ad Spend consists of a “trial ad spend budget” and “monthly ad spend”. The trial ad spend budget is agreed upon by Client during the sign-up period, and it is used as a trial amount to validate performance and show initial results. After the trial amount, the monthly ad spend will vary based on results, and it is the Client’s responsibility to document in writing any monthly ad spend limitations. All ad spend will be directly paid to the respective ad platforms. Easton Digital does not markup ad spend.

   b. Management Fees are charged by Easton Digital for managing and tracking Client’s campaign during the Subscription Period, including provision by Easton Digital of selection, placement, optimization, formulation, tracking, monitoring and related services toward implementation and management of Client’s campaign during the Subscription Period. Management Fees are pursuant to Easton Digital’s Paid Advertising Fee Schedule, as amended from time to time by Easton Digital. Management fees include a Base Rate and a Performance Rate. The Performance Rate is a based on the amount of total revenue driven.

   c. Easton Digital will also be entitled to receive a one-time Account Restructure fee with respect establishing Client’s Paid Advertising campaign (including items such as key-word development, past data analysis, market analysis, conversion tracking check, account strategy, website review and other administrative items).  For the Google Shopping Launch Program (Setup + Coaching Program), this fee is waived.

 

 5. Payment Terms. All payments to Easton Digital for the Services shall be made in immediately available funds, in U.S. Dollars, by credit card (Visa, MasterCard or American Express). Easton Digital may retain and store Client’s payment information, including but not limited to, credit card number and expiration date. Due to the nature of the Services, all sales for each periodic Subscription Period are non-refundable, except as expressly provided herein. Easton Digital is authorized to charge the subscription renewal fee for upcoming Subscription Period Services to the credit card provided to Easton Digital by Client. Client may change its billing information on written notice to Easton Digital. Invoices, where requested by Client, shall be delivered solely by e-mail to Client’s e-mail notice address provided to Easton Digital during the sign-up process.

 

Credit Card must pre-pay the Base Rate for at least one month’s Services in advance and will be billed monthly in advance of the Services being provided after conclusion of the applicable pre-payment period. The Credit Card must post-pay the Performance Rate for the previous month’s Service and will be billed monthly at the applicable pre-payment period.

 

Failure by Client to maintain valid and current payment arrangements with Easton Digital may result in interruption or cancellation of the Services. Such interruption does not relieve Client of the obligation to pay for Services already provided to Client by Easton Digital. If Easton Digital is, or becomes, required by law to deduct or withhold any taxes (including without limited to sales taxes, use taxes, ad valorem taxes, or similar charges or assessments) from amounts due to Easton Digital from Client, then all amounts due from Client shall be increased so that the net amount actually received by Easton Digital after deduction or withholding of any such tax, charge or assessment will equal 100% of the agreed-upon charges.

 

All amounts not paid by Client shall bear interest at a rate of 1.0% per month (or the highest rate permitted by law, if less). Client agrees to pay all costs of collection (including reasonable attorney’s fees, expert witness fees, court costs, etc.) incurred by Easton Digital arising from or relating to enforcement of its rights against Client.

 

6. Payment Refund and Guarantees.  

a. For Full Service clients, Easton offers a 30 day Satisfaction Guarantee to the Client. The 30 days starts from when the Client paid the Account Restructure Fee, which may also be known as the setup / audit / restructure fee.  Multiple payments may be made during this first 30 days of work. The Client may receive a refund of the last payment made, within the 30 day window.  Only the last payment will be refunded.  Any refund request after the 30 day will not be granted.  If for any reason you are unsatisfied with the service, please contact [email protected] for a refund. 

b. For Launch Program clients (formally know as Setup + Coaching program), Easton offers a 7 day Satisfaction Guarantee to the Client. The 7 days starts from when the Client paid the One-Time Setup and Strategy Fee.  If for any reason you are unsatisfied with the service, please contact [email protected] for a refund. 

c. In the event of any refund, you many not continue using campaigns created by Easton and all negative keyword lists, Google ad scripts, supplemental data feeds, and duplicate ID data feeds created by Easton will not be shared with you.  Easton will assist in turning on previously running campaigns and data feeds, but cannot guarantee a return to past performance.  

 

Easton Digital may terminate this Agreement if the Client violates any provision of this agreement or the Easton Digital Privacy Policy, and the Client does not cure any such breach within 10 days of notification of the breach from Easton Digital. Failure to pay the agreed-upon fees in a timely manner constitutes a material breach. Failure to respond to communications from Easton Digital within 10 days constitutes a material breach. Easton Digital may also terminate this Agreement for any reason or for no reason, upon 30 days’ written notice to the Client.

Upon termination of this Agreement for any reason, the Client shall discontinue any use, retention, display, or distribution of any of the work product or materials provided to the Client by Easton Digital hereunder (including without limitation, Easton Digital’s trademarks and the Reporting System) and delete from all storage servers and devices all such work product or materials received under this Agreement. Upon termination of this Agreement, Easton Digital shall return to the Client, delete, or destroy (in Easton Digital’s sole and absolute discretion) all Client Data (defined herein) provided by the Client during the term of this Agreement.

Termination is a remedy in addition to, and not in place of, any other measure(s) which may be available to Easton Digital in equity or in law. 

In the event of termination by either party, the indemnification provision contained in Section 11 shall survive any such termination and remain in effect for a period of 3 years after termination.

In the event of a termination initiated by Easton Digital due to the Client’s breach of this Agreement, Easton Digital shall retain any remaining balance in the Client’s account as partial liquidated damages.

In the event of a termination and refund of management fees, the Client and Easton Digital agree not to take any action or make any statement, written or oral, that disparages the other or the directors, officers, employees, or agents of the other party, or that has the intended or foreseeable effect of harming the other party’s reputation or the personal or business reputation of any of its directors, officers, employees, or agents.

 

8. External Provisions. Both parties acknowledge and agree to the Google Adwords Policies currently located at https://support.google.com/adwordspolicy/answer/1316548?hl=en and also to the Google Privacy Policy currently located at https://www.google.com/intl/en/policies/privacy/, both of which are hereby incorporated by reference within this Agreement. Client agrees that Client’s consent herein shall also apply to any future successor policies published by Google covering substantially the same material. In the event that either party does not agree with these external provisions, then their sole remedy shall be to exercise their rights under the termination clause of this Agreement.

 

Both parties also acknowledge and agree that Easton Digital may use other third party vendors, such as (without limitation) Facebook and Microsoft in the delivery of the Paid Advertising Services hereunder. Client acknowledges that such third parties may require adherence by both parties to policies governing items such as prohibited content, prohibited practices, restricted content, editorial and technical quality standards, and privacy. When such third party policies apply to the delivery of the Paid Advertising Services hereunder, the Parties shall comply with such third party policies. To the extent such third party policies are required to be incorporated into this Agreement, they are hereby so incorporated.

 

9. Third Party Art. From time to time, Client may request Easton Digital to provide photographs, images, infographics, illustrations or other artwork in connection with Easton Digital’s provision of the Paid Advertising Services. To the extent that such photographs, images, infographics, illustrations or other artwork are sourced by Easton Digital from one or more third party services and provided to Client as part of the Paid Advertising Services, such items constitute “Third Party Art” hereunder. Easton Digital cannot, and does not, guaranty that all Third Party Art is validly-licensed for Client’s intended or actual use. ACCORDINGLY, CLIENT ACKNOWLEDGES AND AGREES THAT IF CLIENT REQUESTS EASTON DIGITAL TO INCLUDE THIRD PARTY ART AS A COMPONENT OF THE PAID ADVERTISING SERVICES, CLIENT ASSUMES ALL RISKS ASSOCIATED WITH CLIENT’S USE OF THIRD PARTY ART. CLIENT AGREES TO PERFORM WHATEVER DUE DILIGENCE CLIENT BELIEVES IS NECESSARY IN ORDER TO PERMIT CLIENT TO USE THIRD PARTY ART INCLUDED IN THE PAID ADVERTISING SERVICES (INCLUDING WITHOUT LIMITATION, OBTAINING AN INDEPENDENT LICENSE IN CLIENT’S NAME TO USE SUCH THIRD PARTY ART). CLIENT HEREBY AGREES TO HOLD HARMLESS EASTON DIGITAL, ITS AFFILIATES, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, SUCCESSORS AND PERMITTED ASSIGNS, FROM AND AGAINST ANY AND ALL COSTS INCURRED OR PAID BY CLIENT OR ANY THIRD PARTY ON ACCOUNT OF THIRD PARTY ART INCLUDED WITH THE PAID ADBERTISING SERVICES, EXCEPTING THEREFROM, COSTS INCURRED AS A DIRECT AND PROXIMATE RESULT OF EASTON DIGITAL’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

10. Copyright. Ownership of content generated by Easton Digital in connection with the Paid Advertising Services transfers from Easton Digital to Client only after payment in full by Client of all amounts applicable to such content. Easton Digital’s Reporting System and any methods of optimization disclosed by Easton Digital to client cannot be copied or used by Client except as expressly contemplated by this Agreement in connection with the Paid Advertising Services, and any such right shall terminate upon termination of this Agreement unless expressly authorized in writing by Easton Digital. Client acknowledges that, at Easton Digital’s expense, a domain name and advertising account with one or more third party providers may be registered and hosted by third parties, with a website page or landing page approved by the client and created by Easton Digital in furtherance of delivery of the Paid Advertising Services. Such domain, advertising account information and log-in password and credentials, together with all related advertising account and website content, shall remain the property of Easton Digital and shall not be transferable to Client.

 

11. Intellectual Property Rights. It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to Easton Digital for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to Easton Digital use such Materials for the purposes of providing the Services for the duration of the Contract. The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. Easton Digital shall be entitled to reject and delete such material without incurring any liability. The Client shall indemnify Easton Digital against all damages, losses and expenses suffered or incurred by Easton Digital as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party. Unless expressly stated otherwise in these Terms or written agreement, the Intellectual Property created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall be the property of Easton Digital or the relevant third party from whom Easton Digital has acquired a right of use with a view to executing the Service. The Intellectual Property shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement. If Easton Digital makes software, scripts, ASP services etc. available to the Client as part of the execution of the Service, the Client shall only acquire a non-exclusive personal non transferable license to use such material until the Services under this agreement cease.  The Client hereby irrevocably licenses the Company to use and display the Client’s name, figure, logo etc. as a reference on Easton Digital’s website, other marketing materials or types of media. The Client agrees to send the Company it’s most recent logo or figure as and when it is amended from time to time.

 

12. Client Data; License.  Client is responsible for providing Easton Digital with current and accurate data necessary for Easton Digital to provide the Services. As used herein, “Client Data” shall include, without limitation, client’s website domain name and URL, Client’s business name, address, telephone number(s), facsimile number(s), e-mail address(es), social media and website content subject matter, ideas and concepts, artwork, photographs, images and other materials or data submitted by Client to Easton Digital to enable Easton Digital to provide the Paid Advertising Services hereunder. Client hereby grants Easton Digital a non-exclusive, royalty-free, worldwide license during the term of this Agreement and all renewal terms to use, copy, display, modify and transmit the Client Data for purposes of providing the Paid Advertising Services.   Client represents and warrants to Easton Digital that: (a) Client owns or has all requisite rights, licenses and permissions to submit the Client Data to Easton Digital for the use contemplated by the Paid Advertising Services; (b) the use by Easton Digital of the Client Data for the purposes of providing the Paid Advertising Services hereunder does not, and will not, infringe any intellectual property or other rights of any third party or the laws, rules, regulations, orders or treaties of any governmental authority or jurisdiction; (c) the Client Data does not, and will not, infringe upon any trademark, copyright, contract or property rights of any third parties and that Client has paid any and all royalties or other charges to be paid pursuant to the copyright law of the United States, any statute, order or other law, right or contract governing the Client Data; (d) the Client Data does not, and will not, contain any materials which are libelous, defamatory, obscene, or invades the rights of privacy or other rights of any individual; (e) Client has all necessary power and authority to enter into and perform in accordance this Agreement; (f) this Agreement is legal, valid, binding and enforceable against Client; and (g) neither the execution of, nor performance under, this Agreement by Client violates or will violate any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to Client.   Easton Digital shall have discretion to select individual words or phrases (“Keywords”) to be used in furtherance of the Advertising Services. If Client requests the use of certain Keywords, Easton Digital will exercise reasonable efforts to employ such Keywords within the scope of the Paid Advertising Services. Easton Digital shall not be liable to client or third parties in the event Client requests Easton Digital to use Keywords comprised of trademarks or other protected intellectual property of such third parties (such as competitors). Easton Digital may (but shall have no obligation to), from time to time, remove from Client’s campaign, or suspend the use of, Keywords which Easton Digital determines, in its sole and absolute discretion may interfere with third party intellectual property rights.   While Easton Digital may use Client’s customer lists or customer information for purposes of providing the Services, Easton Digital does not sell or distribute to third parties Client’s customer lists or aggregated customer information.

 

13. Client Representations and Warranties; Covenants. Client acknowledges that Client is solely responsible for any liability arising out of or relating to Client’s internet websites and social media sites, any advertisement or content provided by Client hereunder (including Keywords requested by Client and used by Easton Digital as part of the Advertising Services) and any material to which users can link through such advertising content. In addition to Client’s representations and warranties concerning Client Data set forth in Section 10 hereof, Client represents and warrants that Client’s current Internet website, social media sites and all modifications thereof or additions thereto during the term of this Agreement do not and will not: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) violate any law, statute, ordinance, rule or regulation, including, without limitation, laws and regulations governing export control, country of origin, customs/duties, tariffs, false advertising, privacy, unfair competition and taxation; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain or deploy viruses, worms, Trojans, malware, or similar harmful programming routines.

 

14. Indemnification. Client shall indemnify, defend and hold harmless Easton Digital, together with its affiliates, members, officers, directors, employees, agents, contractors and permitted assigns from and against any and all third party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with: (i) the lawful use of or reliance by Easton Digital on the Client Data in performing the Paid Advertising Services under this Agreement, (ii) any breach of or default under the terms, conditions, representations or warranties of this Agreement by Client, or (iii) any negligence, gross negligence or willful misconduct by or on behalf of Client or its employees or agents.

 

15. Express Limited Warranty; Limitations on Liability.

   a. Limited Warranty. Easton Digital shall provide the Paid Advertising Services under this Agreement in a professional manner, consistent with generally-accepted standards applicable to the online advertising industry. Due to periodic changes in search engine algorithms and accessibility of open source citations, Easton Digital cannot guarantee search engine result pages or line placement where Client’s business will appear. EASTON DIGITAL DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE PAID ADVERTISING SERVICES.

   b. Representations and Warranties Limited; Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PAID ADVERTISING SERVICES ARE PROVIDED “AS-IS” AND EASTON DIGITAL DOES NOT MAKE ANY WARRANTY, REPRESENTATION OR GUARANTY AS TO THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OF THE PAID ADVERTISING SERVICES OR OTHER DATA, REPORTS OR INFORMATION FURNISHED TO CLIENT HEREUNDER. FURTHERMORE, THE PAID ADVERTISING SERVICES MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. THE EXPRESS WARRANTY SET FORTH IN PARAGRAPH 13(a) IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTIES ARE HEREBY DISCLAIMED. ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED. EASTON DIGITAL SHALL HAVE NO LIABILITY FOR ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM CLIENT’S ACCESS TO OR USE OF THE PAID ADVERTISING SERVICES; UNAUTHORIZED ACCESS TO OR USE OF EASTON DIGITAL’S SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; INTERRUPTIONS OF TRANSMISSION TO OR FROM THE PAID ADVERTISING SERVICES; BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRASMITTED BY OR THROUGH ANY THIRD PARTY; LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE PAID ADVERTISING SERVICES; PRIVACY-RELATED CLAIMS OR ACTIONS ASSERTED BY THIRD PARTIES (INCLUDING GOVERNMENTAL OFFICIALS) AS A RESULT OF RETENTION OF CALL DATA OR OTHER INFORMATION IN CONNECTION WITH THE PAID ADVERTISING SERVICES; OR MATTERS BEYOND EASTON DIGITAL’S REASONABLE CONTROL.

   c. No Authority to Modify. No employee, salesperson, vendor or other agent or purported agent of Easton Digital is authorized to make any warranties, representations or guaranties to the contrary of the foregoing, and any such purported warranties, representations or guaranties shall not be relied upon as having been given by or on behalf of Easton Digital. Furthermore, Client acknowledges that it is the responsibility of Client to verify any information upon which it or any of its employees or agents use, rely on or otherwise take action upon with respect to financial or other consequences.

   d. Limitations on Liability. If Easton Digital fails to perform its duties and obligations under this Agreement, and Client can establish that as a direct result thereof, Client has incurred any damages, liabilities, losses, fees, costs or expenses, then Easton Digital’s liability to Client for actual damages for any cause whatsoever, during the term of this Agreement, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed in the aggregate the Management Fees (specifically excluding amounts comprising the Advertising Budget) that Client has paid for the Paid Advertising Services in question during the Campaign Period in question. IN NO EVENT SHALL EASTON DIGITAL OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES SUSTAINED OR INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH THE PAID ADVERTISING SERVICES, ANY ACTION ANY OF THEM TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS CLIENT SENDS TO EASTON DIGITAL OR THE DELAY OR INABILITY TO USE ANY PAID ADVERTISING SERVICES, OR EASTON DIGITAL’S REMOVAL, MODIFICATION, SUSPENSION OR DELETION OF ANY PAID ADVERTISING SERVICES PURSUANT TO ITS RIGHTS UNDER THIS AGREEMENT, IN ALL CASES, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND EVEN IF EASTON DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AN ACTION BY EASTON DIGITAL FOR NON-PAYMENT, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

   e. Search Engine Guideline Penalties. Client shall inform Easton Digital of any past or future marketing plans implemented or to be implemented by Client so that Easton Digital may factor such plans into its planning for the Paid Advertising Services hereunder. Easton Digital shall not be responsible for any search engine guideline penalties caused by Client’s marketing plans, whether or not disclosed to Easton Digital.

 

14. Confidential Information.

   a. Definition. For purposes of this Section 14, “Confidential Information” of a Disclosing Party shall mean and include any information, written or oral, which relates to such Disclosing Party’s business, products, processes or services that is specifically designated as “Confidential Information” by such Disclosing Party or that constitutes “trade secrets” pursuant to the Uniform Trade Secrets Act as adopted in the State of Ohio, USA. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (a) information that was already known to the receiving party prior to disclosure or is later made public by or for the Disclosing Party on an authorized basis; (b) information obtained or readily ascertainable from the general public; (c) information received from a third party not known to be employed by or affiliated with the disclosing party; (d) information that was independently developed by the Receiving Party without reference to Confidential Information; and (e) information which is or becomes known to the general public other than through a breach of this Agreement. Client acknowledges and agrees that Easton Digital may share information about Easton Digital’s customers including basic information about Client with prospective customers for the purpose of marketing Easton Digital’s services. The terms of this Agreement, along with Easton Digital’s pricing, software and technical documentation related to the Paid Advertising Services shall be deemed Confidential Information regardless of any lack of designation.

   b. Duties. Each party (a “Receiving Party”) shall treat all Confidential Information, tangible and intangible, received by it in connection with this Agreement that pertains to the other party (a “Disclosing Party”) as confidential and proprietary information of the Disclosing Party, will not make any such Confidential Information available to any other person (except a subcontractor or contractor/affiliate who has also agreed to provisions substantially similar to those set forth in this Section 14), will use reasonable care to protect such Confidential Information from theft, loss, misuse and disclosure and will not use such Confidential Information except for Receiving Party’s benefit in connection with this Agreement. Each Receiving Party will, to the extent reasonably possible, return to the Disclosing Party all Confidential Information on termination of this Agreement. If a Receiving Party is ordered by law to disclose Confidential Information, such Receiving Party may do so, but only to the extent required by applicable law or process and only after first giving the Disclosing Party prompt written notice of that order.

   c. Remedies. The Parties acknowledge that the Confidential Information is of a special and extraordinary character, and that any breach of this Section 14 will cause a Disclosing Party irreparable injury and damage, and so each Disclosing Party will be entitled, in addition to all other legal or equitable remedies available to it, to injunctive relief to prevent, cease or otherwise redress that breach.

 

15. Miscellaneous.

   a. Assignment. Client may not assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining Easton Digital’s written consent, except that Client may assign this Agreement without Easton Digital’s consent (i) to an affiliate (controlled by or under common control with, Client); or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Client’s assets not involving a direct competitor of Easton Digital; provided that Client provides prompt written notice to Easton Digital of such assignment. Any permitted assignment by Client shall not modify the terms hereof, including without limitation, the specific geographic location applicable to the Paid Advertising Services. Any attempt to assign Client’s rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

   b. Notice. Except as otherwise provided in this Agreement, any notice to Client that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon transmission when sent via contact form or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to the address provided by Client in the sign-up materials provided to Easton Digital in connection with entering into this Agreement or to such other address as provided in writing by Client to Easton Digital for such purposes. Except as otherwise provided in this Agreement, any notice to Easton Digital that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent via contact form or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, such as Federal Express or equivalent, to: Easton Digital, Inc., 510 E. Wilson Bridge Road, Suite C, Worthington, Ohio 43065, Attn: Legal Notice. Upon receipt, if a valid e-mail address is provided and remains current, Easton Digital may give notice to or communicate with Client by e-mail addressed to the persons identified in the sign-up process or to such other e-mail address or persons as Client shall hereafter specify by prior written notice. By providing an e-mail address, Client agrees that any receipt received by Easton Digital from Client’s service provider or Internet computer server indicating that the e-mail was received shall be deemed proof that Client received the message. If Client cannot see or print all or a portion of a message, Client agrees that it is Client’s responsibility to contact Easton Digital to resolve such technical issues.

   c. Force Majeure. Due performance of any duty or obligation hereunder by Easton Digital shall be excused if prevented by acts of God, information providers or other service providers, public enemy, war, terrorism, any accident, explosion, fire, storm, earthquake, flood, strike, computer outage or virus, telecommunications failure or any other circumstance or event beyond Easton Digital’s reasonable control. Client acknowledges that Easton Digital has no responsibility for or control over search engines or Internet database partner(s) usage of customer data in fulfilling Internet search queries or any particular placement of any information from Client as a result of a search or query on any third party Web site. Client further acknowledges that Easton Digital has no responsibility for, or control over, third party social media content requirements or rules applicable thereto.

   d. Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, then the validity, legally or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties waive any provisions of law that render any provision of this Agreement invalid, illegal or unenforceable in any respect.

   e. Waiver or Consent. Any failure by either of the parties to comply with any obligation, covenant, condition or agreement contained herein may be waived in writing by the party entitled to the benefits thereof, but such waiver or failure to insist on strict compliance with such obligation, covenant, condition or agreement shall not operate as a waiver of or estoppel with respect to any subsequent or other failure. To be effective, any consent by Easton Digital must be in writing and signed by an authorized representative of Easton Digital.

   f. Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof and supersedes and replaces all prior writings or oral negotiations or other understandings with respect thereto.

   g. Independent Parties. Nothing in this Agreement shall be construed as creating a partnership, joint venture, fiduciary or agency relationship between the parties, or as authorizing either party to act as an agent for the other (except as expressly provided in Section 2). The parties to this Agreement are independent parties.

   h. Resolution of Disputes; Binding Arbitration; No Class Representative Actions or Arbitrations.

      i. ANY AND ALL CLAIMS BETWEEN EASTON DIGITAL AND CLIENT BE RESOLVED IN BINDING ARBITRATION RATHER THAN IN COURT. Easton Digital and Client agree to submit to individual arbitration the resolution of any and all Claims (defined herein) by or between Easton Digital or its affiliates and Client relating to the Paid Advertising Services or these Terms of Service. Easton Digital and Client agree that these Terms of Service affect interstate commerce, and that the enforceability of this Section 15(i) will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1–9 (“FAA””). “Claim(s)” means any dispute, claim or controversy by or between Client and/or Easton Digital or its affiliates, relating to the Paid Advertising Services and/or these Terms of Service, as may be modified from time-to-time, and the subject matter hereof, including, but not limited to, any contract, tort, statutory, or equity claims.

      ii. Any arbitration will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (the “AAA Rules”), as modified by this Agreement. As required by the AAA Rules, if Client initiates the arbitration proceedings, Provider must send the original copy of the completed form to Easton Digital, which should be sent to Easton Digital at the notice address set forth in Section 15(b), Attention: “Arbitration Notice.”

     iii. CLIENT AND EASTON DIGITAL AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Client and Easton Digital expressly agree that any Claim is personal to Client and Easton Digital and its affiliates, and any such Claim shall only be resolved by an individual arbitration, and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding.

   i. Governing Law. Forum for Disputes. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Ohio applicable to agreements made and wholly performed therein. Client hereby consents to the exclusive jurisdiction of the federal and state courts of competent jurisdiction located in Franklin County, Ohio for the adjudication of any disputes arising out of or relating to this Agreement or Client’s access to or use of the Services. Client hereby waives any objection to venue or inconvenient forum laid therein.

   j. Revisions. In order to meet changes in search engine guidelines or other factors impacting Web and social media content optimization and marketing trends, Easton Digital may revise this Agreement at any time by updating this posting and providing Client with written notice of such update. Client should visit this page from time to time to review the current Agreement, which shall continue to be binding on Client in its revised form.

   k. Privacy Policy. The Easton Digital Policy is hereby incorporated into this Agreement. By receiving the Paid Advertising Services, Client is deemed to have read and accepted the Easton Digital Privacy Policy. Violation of the Easton Digital Privacy Policy by Client shall be a material breach of this Agreement.

   l. Modification of Terms of Service: Easton Digital reserves the right to change these terms of service without notice.

   m. Age. You must also be at least eighteen (18) years old to agree to these Terms.