TERMS OF SERVICE
Good Press Publishing DBA Simply The Best Digital
Janaury 20, 2021
Good Press Publishing Inc. (“STB Digital”, “we”, “us”, or “our”) is an internet marketing services platform designed to assist you (the “Customer”, “you”, or “your”) to attract and acquire clients (the “Clients”) within your desired area of business or expertise. Our services generally include but are not limited to, the operation of our website (https://simplythebestdigital.com), tools to drive Internet traffic, design of captivating advertisements, the building of websites and landing pages designed to attract and convert prospective Clients, and assisting customers with tracking calls and leads (collectively, the “Services”).
By browsing the AIT website or by requesting or accepting the Services through the hosted website page that is used to facilitate the execution of the Services (the “Order Page”), you agree to the following terms and conditions of service (the “Terms of Service” or this “Agreement”).
If the Customer set forth on the Order Page Business form must be 100% owner, company or other legal entity, you represent that you have the authority to bind such entity (and its parents, affiliates or subsidiaries, as applicable) to the terms and conditions contained in this Agreement, and the terms “Customer”, “you”, and “your”, as used herein, shall apply to your business, company, or other legal entity. This Agreement is effective between you and STB Digital as of the date that you accept it (the “Effective Date”). Throughout this Agreement, you and STB Digital may each be referred to as a “Party” or collectively, as the “Parties”.
BY CHECKING THE BOX TO AGREE, OR CLICKING AN “I AGREE” BUTTON, WHENEVER PRESENTED, TO AGREE TO THESE TERMS OF SERVICE, OR BY SIGNING UP, ACCESSING, OR USING THE SERVICES, YOU ARE ENTERING INTO A BINDING AGREEMENT WITH STB Digital, AND YOU EXPRESSLY AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
Non-Disclosure Agreement. Our Mutual Confidentiality and Non-Disclosure Agreement (the “NDA”) (https://simplythebestdigital.com/non-disclosure/) is expressly incorporated into this Agreement. You acknowledge and agree to abide by the terms of the NDA, and agree that the terms thereof shall be applicable to you and to us.
Changes to these Terms of Service. STB Digital reserves the right to change or modify the Terms of Service at any time. STB Digital will post the revised Terms of Service on the Website and revising the date at the top of these Terms of Service. Any changes or modifications will be effective from the day these Terms of Service have been publicized. You acknowledge that your continued use of the Website or any of the Services following such notice constitutes your acceptance of the modified Terms.
Changes to the Services. STB Digital reserves the right, at any time, and without notice or liability to you, to modify the Website and the Services, or any part of them, temporarily or permanently. STB Digital may modify the Services for a variety of reasons, including, without limitation, for the purpose of providing new features, maintaining compatibility with emerging standards, or complying with regulatory requirements.
Subscriptions. Unless otherwise provided on the applicable Order Page, (a) the purchase of and access to the Services are purchased as subscriptions for the term stated on the applicable Order Page, (b) additional services may be added to the purchased Services during a subscription term subject to the additional services standard price, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added services will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by STB Digital regarding future functionality or features.
Services. In consideration for the Fees specified herein, and subject to the terms of this Agreement, STB Digital will provide the following Services to Customer, as may be specified in greater detail on the Order Page:
Google My Business Services. STB Digital will setup, arrange, and manage on line google my business (“GMB”) advertising services via Internet search engines. STB Digital, at its discretion, may create one or more advertisements (each, an “Ad”) on behalf of Customer, which may include information in text and/or image form about Customer and its business. In connection with the Ad(s), STB Digital will create one or more web-based advertising campaigns for Customer (each, a “Campaign”), which will align the Ad(s) created by STB Digital with keywords that are likely to be searched by prospective Clients, with the goal of directing such prospective Clients to Customer’s Google Listing (as defined in Section 3.1(b)). The specific keywords, timing, geography, and target prospective Clients for each search shall be set by STB Digital in its sole discretion. As part of each listing, STB Digital will then promulgate submissions (s) across the Internet to target prospective Clients through the services of third party entities responsible for displaying Ad(s) across the internet (the “Ad Serving Companies”), which may include, but are not limited to Google®, Yahoo®, and Bing®. In connection with GMB, Customer expressly consents to the terms and conditions of each listing company through which such Services are provided, which are referenced in Section 5.3 hereof. Furthermore, Customer shall be
Website Services. STB Digital will create a website with one or more website landing pages for Customer, with content that is specific to Customer and its business (a “Website”). STB Digital will assign Customer’s Website to a geographic territory (the “Geographic Territory”), which, in STB Digital’s discretion, is likely to provide the most favorable visibility for Customer’s business, in light of the Customer’s physical location, business activities, and other relevant factors. Customer acknowledges and agrees that the Geographic Territory for Customer’s Website shall be determined and assigned by STB Digital, in its sole discretion. The Website will further be dedicated to serve to showcase and promote a specific practice area of the Customer’s business which will be set forth in the Order Page or otherwise agreed to by Customer and STB Digital.
Call Tracking & Analytics Services. In connection with Services involving Websites and PPC, STB Digital will provide Customer with a dedicated phone number to track all calls and call dates from the campaigns, analytics data, and personalized dashboards that provide, for example, lead data, budget information, Ad data, geographic targeting data of Clients, and Client conversion data (collectively, “Call Services”). In connection with Call Services, Customer expressly consents to the terms and conditions of each Third Party Provider through which such Call Services are provided, and which are further referenced in Section 5.3 hereof.
Call Answering Services. STB Digital, in conjunction with one or more Third Party Providers, will provide a service in which inbound calls generated from Website(s) created by STB Digital will be answered by live receptionists (the “Call Answering Service”) on behalf of the Customer. If Customer elects to use the Call Answering Service, then calls to the Customer are answered during the operating hours of STB Digital’s call centers, which is typically twenty-four (24) hours per day, seven (7) days per week, although these times may vary. The Call Answering Service provider will capture basic information about the prospective client and either attempt to connect the caller with the Customer or will communicate to the Customer the details captured during the call via email and/or text message. In connection with the Call Answering Service, Customer may have, or be provided with, the option to record incoming calls from Clients and prospective Clients. Customer shall have the sole and exclusive responsibility for ensuring that it has the necessary permissions for recording calls, and for ensuring that Customer remains in compliance with applicable laws, rules, and regulations in the course of
doing the same. The terms for Third Party Provider who will provide Call Answering Services are referenced in Section 5.3(b) hereof.
Intake Automation Services. STB Digital, in conjunction with one or more Third Party Providers, will provide a service in which some or all of a Customer’s typical client intake processes are automated for the leads and calls generated from Website(s). These services include: automated text messages (SMS) and emails sent to potential clients responding to the Website(s), more detailed case qualifying intake questions being asked by Call Answering Service provider or through custom forms sent to potential clients, and automated calendaring of consultation appointments between Customers and potential clients. In connection with Intake Automation Services, Customer expressly consents to the terms and conditions of each Third Party Provider through which such Intake Automation Services are provided, and which are further referenced in Section 5.3 hereof.
Additional Services. At various times Customer may have the option to request from STB Digital certain additional Services (the “Additional Services”). Such Additional Services may be selected by Customer via the Order Page during the initial set up process or agreed to by STB Digital and Customer from time to time thereafter. The Fees for Additional Services will be as indicated on the Order Page for the services, and the terms of this Agreement shall, at all times, apply thereto.
Additional Geographic Territories. Customer may request for STB Digital to add additional geographic territories to its account, which will involve the creation by STB Digital of one or more additional Ads, Websites, and/or Campaigns for Customer, and the provision of Services in connection with each new Geographic Territory and corresponding Website(s). An additional Monthly Advertising Target Budget must also be established and maintained for each new Geographic Territory and corresponding Website(s). Customer acknowledges and agrees that STB Digital has the sole discretion as to (i) whether or not to grant Customer’s request to provide it with an additional Geographic Territory, and (ii) the final size, shape, location, layout, and other factors of such additional Geographic Territory.
Additional Campaigns. Customer may request for STB Digital to launch additional Campaigns for additional practice areas or other customer objectives, which may involve the creation by STB Digital of one or more additional Ads and/or Websites, in addition to the additional Campaigns for Customer. Additional Campaigns will require the provision of Services in connection with each new Campaign and corresponding Website(s). An additional Monthly Advertising Target Budget must also be established and maintained for each new Campaign and corresponding Website(s). Customer acknowledges and agrees that STB Digital has the sole discretion as to whether or not to grant Customer’s request to launch an additional Campaign.
Customer Marketing Content. Through the provision of the Services, STB Digital may provide to Customer, or assist Customer with, certain content that uniquely identifies Customer and the services that it provides (“Customer Marketing Content”). STB Digital may incorporate Customer Marketing Content as part of the Website(s) and Campaigns that it creates.
Launch. The date on which STB Digital launches the Services by making them accessible via the Internet on behalf of Customer, shall be known as the (“Launch Date”). A Launch Date will be the first (1st) or fifteenth (15th) day of a calendar month, although STB Digital reserves the right to change this schedule or select a different date as the Launch Date for Customer. Customer may request its requested launch date on the Order Page. STB Digital agrees to utilize reasonable efforts to accommodate Customer’s requests in connection with a Launch Date but makes no guarantees as to specific dates.
Subcontractors. STB Digital may, in its sole discretion, collaborate or utilize the services of independent subcontractors in the performance of Services for Customer hereunder.
No Exclusivity. STB Digital retains the right to perform the Services (or other, similar services) for other customers during and after the Term of this Agreement. Customer acknowledges STB Digital’s right to provide such Services and acknowledges and agrees that nothing in this Agreement shall preclude STB Digital from entering into an agreement with any other person or entity for the provision of similar services, including those that are similar to or competitive with Customer. Additionally, STB Digital may have developed, have under development or in the future may develop services, solutions, or applications that may be directly or indirectly competitive with Customer’s business. Customer acknowledges and agrees that, subject to its ownership of its own Intellectual Property Rights (as defined in Section 8) and the confidentiality provisions of this
Agreement, nothing herein shall impair the rights of STB Digital to acquire, market or develop any services, either for itself or on behalf of others, that are similar to the Services being provided to Customer hereunder or that may compete with Customer.
STB Digital Obligations.
Performance. STB Digital shall perform Services set forth herein in a diligent and workmanlike manner.
Customer Content. In the course of providing Services, Customer may provide to STB Digital documents, written works, design, artwork, graphics, video, audio, reports or other information about Customer (“Content”), that may be utilized by STB Digital in the course of providing Services. STB Digital agrees take commercially reasonable steps to protect and secure such Content. Upon completion or termination of this Agreement, STB Digital agrees to return the Content to Customer or destroy it (as instructed by Customer). Customer agrees to ensure the accuracy of all Content that it provides to STB Digital in connection herewith. Furthermore, Customer agrees that STB Digital shall have sole discretion as to the exact Content that it elects to use and the manner in which it is used; provided however, that STB Digital shall not use Content in any manner that is derogatory or that casts Customer in a negative light. In light of the foregoing, Customer hereby grants to STB Digital a license to utilize the Content for the purpose of providing Services to Customer hereunder.
Cooperation. During the Term of this Agreement, Customer shall cooperate with STB Digital and STB Digital personnel in its performance of the Services and provide access to Customer’s information, website, network, software, analytical tools, Content, and people as required to enable STB Digital to provide the Services.
Designated Personnel. Customer will designate and maintain one of its officers, employees, or representatives to serve as its primary contact with respect to this Agreement and with respect to matters pertaining to this Agreement, with such designation to remain in force unless and until a successor is appointed. The representative designated by Customer shall respond promptly to any reasonable requests from STB Digital for instructions, information, approvals, or authorizations required by STB Digital to provide the Services.
Customer agrees and acknowledges that the successful provision of the Services requires Customer to contract with third party service providers (“Third Party Provider(s)”) for various portions of its Services, including, but not limited to Ad Servicing Companies to provide Ads and call centers to provide Call Answering Services, and analytics companies to provide tracking services. STB Digital has the option to choose the 3rd party provider.
Customer agrees to consent to, and abide by, the Third Party Providers’ terms and conditions (the “Third Party Terms”), and agrees to pay the Third Party Providers where applicable. Additionally, Customer shall be responsible for promptly taking the necessary steps, providing the proper authorizations to the Third Party Providers necessary for STB Digital to effectively provide the Services. Applicable Third Party Terms that are set forth below, which list STB Digital may amend from time to time:
The links set forth in this Section 5.3(c) are provided solely for your convenience, and STB Digital makes no representations and provides no warranties that the list of Third Party Providers is complete or accurate, or that the links are and will remain functional. If you require a complete list of active Third Party Providers and their most current Third Party Terms, you will need to contact our support team via email.
Customer acknowledges and agrees that Third Party Providers are solely and exclusively responsible for the products or services that they offer and provide. Accordingly, STB Digital is not responsible for, and disclaims any and all liability in connection with any products, services, acts or omissions of any Third Party Providers. Furthermore, each Third Party Provider may amend its Third Party Terms at any time, as provided therein.
Limited Grant of Authority. Customer acknowledges that some of the Services provided by STB Digital require, or are better implemented, where STB Digital interacts or contracts with a Third Party Provider directly, and on behalf of Customer. In these instances, the Customer hereby grants (or, in the case of future contingencies, covenants and agrees to grant) STB Digital whatever limited authority is necessary for STB Digital to execute agreements and otherwise interact with the Third Party Provider on Customer’s behalf, including the authority to act as agent for Customer for such limited purposes; and Customer shall indemnify and hold STB Digital harmless against any and all claims, actions or proceedings arising out of the performance of any such action pursuant to such limited grant of authority.
Feedback. Customer agrees to cooperate with STB Digital in gauging the effectiveness of the Services and provide access to Customer’s data, website, network, software, analytical tools, Content, and people as required to enable STB Digital to measure the Services effectiveness.
Compensation. Customer agrees to timely pay all Fees and reimburse all expenses when due pursuant Section 6 hereof.
Compliance. During the Term of this Agreement and following its expiration or termination for any reason, Customer is and shall be solely and exclusively responsible for ensuring that: (i) its business practices; (ii) its use of any Services (including both Services and Additional Services); (iii) its use of the Websites; (iv) its interactions with Clients or prospective Clients; (v) information that it provides STB Digital; and (vi) any Customer Marketing Content complies with all applicable federal, state, and local laws, rules, and regulations (including without limitation, the rules of the Bar Associations or other associations or independent governing bodies applicable to Customer). Customer agrees to promptly notify STB Digital in the event that it discovers any discrepancy, inaccuracy, or other compliance-related issue in connection with any of the foregoing items set forth in this Section 5.7.
Fees and Expenses
Fees. In consideration for the provision of the Services under this Agreement, Customer shall pay STB Digital the fees (the “Fees”) set forth on the Order Page. The Fees consist of a) a one-time setup fee (the “One-Time Setup Fee”), due upon execution of this Agreement and prior to the commencement of any Services; and b) a recurring management fee (the “Management Fee”) which becomes due initially on the Launch Date, and then on or before the same date each subsequent calendar month for Service provided during that month (the “Due Date”), unless otherwise set forth on the Order Page. The Fees may be increased from time to time by written Notice from STB Digital to Customer.
Automatic Draft. Customer hereby authorizes STB Digital to automatically charge Customer’s credit card or debit card, or draw from the Customer’s bank account or other payment method, as the Fees become due, on or near the Due Date, unless the same is prepaid by Customer in advance. Payment to STB Digital of such Fees and the reimbursement of expenses pursuant to this Section 6 shall constitute payment in full for the performance of the Services.
Expenses. Customer shall reimburse STB Digital for all reasonable expenses incurred in the provision of Services where STB Digital has obtained advanced approval from Customer for such expenses, where Services contemplate that STB Digital must make specific purchases on the Customer’s behalf, or where approval is otherwise provided herein.
Other Service Provider Expenses. In addition to the expenses incurred under Section 6.4, and in concert with Section 5.3, Customer acknowledges and agrees that it may need to purchase additional equipment, software or other tools, specifically for Customer’s use or benefit, in order for STB Digital to successfully perform Services hereunder and/or for Customer to successfully implement specific changes and recommendations provided by STB Digital through the Services. STB Digital will advise Customer of the need of any such equipment, software or other tools, and Customer agrees that it shall bear full cost of obtaining them.
Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any national, federal, state or local governmental entity on any amounts payable by Customer; provided, however, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, STB Digital’s income, revenues, gross receipts, personnel or real or personal property or other assets.
Late Payments. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law (not to exceed eighteen percent (18.0%) per annum under any circumstance), calculated daily and compounded monthly. The customer shall also reimburse STB Digital for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which STB Digital does not waive by the exercise of any rights hereunder), STB Digital shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed amounts when due hereunder, and such failure continues for ten (10) days following written notice thereof.
Review and Acceptance of Customer Marketing Content Rejection. No later than five (5) calendar days prior to Launch Date, STB Digital will provide Customer with proposed Customer Marketing Content via email, to the email address that Customer has provided to STB Digital. The customer agrees to maintain communication with STB Digital via email in a commercially reasonable manner. Customer shall have four (4) calendar days from the day on which it received the Customer Marketing Content from STB Digital (the “Review Period”) to provide, in writing, any additions, changes, corrections to errors, or other feedback to STB Digital. If Customer does not provide to STB Digital any corrections, changes, corrections or feedback, the Customer Marketing Content shall be deemed to be final and accepted by Customer. Following the Review Period, the Customer expressly grants STB Digital the right to launch, make public, and implement any Websites, Ads, PPC, Campaigns, and online listings that are part of the Customer Marketing Content. Customer acknowledges and agrees that STB Digital is not responsible for, and shall have no liability for or in connection with, any inaccuracies, inconsistencies, errors, or omissions in any Customer Marketing Content.
Ownership of Confidential Information. All Confidential Information (as defined in the NDA) owned or provided by a Party shall remain the exclusive property of that Party.
STB Digital’s Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, processes, methods, designs, know-how, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) that are owned by STB Digital shall always remain the exclusive property of STB Digital (or of its suppliers or licensors, if and when applicable). With the exception of the license provided under Section 8.4, nothing in this Agreement grants the Customer a license to STB Digital’s Intellectual Property Rights.
STB Digital Materials. All Intellectual Property Rights in and to the Customer Marketing Content shall be owned by Customer. Intellectual Property Rights to non-Customer specific materials, designs, photography, audio-visual content, templates, written works (excluding Customer Marketing Content), and methodologies incorporated in the Ads and Websites provided hereunder, (the “STB Digital Design Materials”), shall be owned by STB Digital, and STB Digital hereby grants Customer a non-exclusive, revocable, worldwide, limited license, solely during the Term of this Agreement, to use its STB Digital Design Materials as part of Services but not apart therefrom.
Customer Content and Ownership.
Ownership of Content. STB Digital does not claim any ownership rights in any such Content and nothing in this Agreement will be deemed to restrict any rights that Customer may have to use and exploit the Content. Customer is aware that Customer is solely responsible for all Content that Customer makes available to STB Digital in connection with the Services and that that data abides by the various privacy laws. STB Digital does not have any obligation to review or scan any Content for any purpose, including without limitation for measuring quality, filtering content, or detecting the presence of malware. STB Digital makes no representations regarding the compliance of any Content with any applicable laws or regulations.
Access to Data. The customer acknowledges that STB Digital may have access to certain information that is submitted by Customer’s Clients or prospective Clients through the use of the Services. Furthermore, the Customer acknowledges and agrees that Third-Party Providers may also collect, store, and have access to certain information that is submitted by the Customer’s Clients or prospective Clients through the use of the Services, and STB Digital may also have access to such information.
Use of Data. To the extent that STB Digital obtains access to any data of Customer’s Clients through the provision of Services, STB Digital agrees that it shall only use such data for the following enumerated purposes: (i) providing Services to Customer; (ii) making the Services functional and usable for Customer; (iii) facilitating interactions between Customer and its Clients; (iv) offering or providing additional products and services to Customer; (v) testing and improving the Services;
(vi) developing a new product or service offerings; (vii) complying with STB Digital’s legal obligations.
Security. STB Digital will implement and maintain commercially reasonable technical and organizational measures to protect customers’ data and its Services against accidental or unauthorized disclosure or access.
Definition of Confidential Information. “Confidential Information” means all non-public, confidential, or proprietary information disclosed on or after the Effective Date, by either Party (a “Disclosing Party”) to the other Party (a
“Receiving Party”), or its affiliates, or to any of such Recipient’s or its affiliates’ employees, officers, directors, partners, shareholders, agents, attorneys, accountants, or advisors (collectively, “Representatives”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”, including, without limitation: (i) all information concerning the Disclosing Party’s and its affiliates’, and their customers’, suppliers’, and other third parties’ past, present, and future business affairs including, without limitation, agreements, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies; (ii) the Disclosing Party’s unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, unpublished patent applications, and other confidential intellectual property; (iii) all designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing;
(iv) any third-party confidential information included with, or incorporated in, any information provided by the Disclosing Party to the Recipient or its Representatives; (v) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials (the “Notes”) prepared by or for the Recipient or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing; and (vi) all products, processes, Trade Secrets (as defined below), process information, technical information, web page format/layout and all images contained therein, keywords, ad groups, image ads, text ads, computer coding, and other proprietary information that have been created by or on behalf of, owned by, used by, or held by, STB Digital, which are valuable, special and unique assets of STB Digital (collectively, “STB Digital Properties”).
Exclusions from Confidential Information. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this Section 11 apply to Confidential Information exchanged between the Parties in connection with the evaluation of additional Services.
Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Page to any third party other than its affiliates, legal counsel, and accountants without the other party’s prior written consent provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 11. Notwithstanding the foregoing, STB Digital may disclose the terms of this Agreement and any applicable Order Page to a subcontractor to the extent necessary to perform STB Digital’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information
Term, Termination and Survival.
Term. This Agreement shall commence as of the Effective Date and shall continue for the period of time selected by Customer on the Order Page, which shall be measured from the Launch Date through the date of completion (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for a successive periods of time equal
to the Initial Term (each, a “Renewal Term”, and together with the Initial Term, the “Term”). Notwithstanding the foregoing, this Agreement may be sooner terminated pursuant to Section 12.2.
Termination for Non-Renewal.
Either Party may elect not to renew this Agreement by providing the other Party with written notice of its intent not to renew at least thirty (30) days prior to the conclusion of the current Term then in effect.
Notwithstanding the foregoing in Section 12.2(a), however, if the duration of the Initial Term of this Agreement is one (1) month or less, then either Party may elect not to renew this Agreement by providing the other Party with written notice of its intent not to renew at least seven (7) days prior to the prior to the conclusion of that Initial Term. Thereafter, either Party may terminate this Agreement as set forth in Section 12.2(a).
Effect of Termination. In the event of termination, the Customer acknowledges and agrees that it shall not be entitled to a refund of any fees paid for any reason. Furthermore, in the event of termination, the Customer shall be responsible for and agrees to pay to STB Digital, all Fees that are or become due and payable through the date of termination. Furthermore, in the event that, after termination, any fees remain owing to third parties in connection with the Services provided by STB Digital to Customer hereunder (including, for example, to Ad Serving Companies), Customer agrees to promptly pay all such fees due.
Mutual Representations, Limited Warranties, and Exclusive Remedies.
Mutual Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
Limited Warranty. STB Digital warrants that it shall perform the Services:
In accordance with the terms and subject to the conditions set out in this Agreement; and
Using personnel of industry-standard skill, experience, and qualifications; and
In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services; and
In compliance with all applicable laws.
Exclusive Remedies for Breach of Warranties. STB Digital’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
STB Digital shall use reasonable commercial efforts to cure any such breach within a commercially reasonable period of time; provided, however, that if STB Digital cannot cure such breach within a reasonable time (but no more than thirty (30) days from the date a Notice of breach is provided to STB Digital), Customer may, at its option, allow STB Digital to continue its remedy efforts, or terminate the Agreement.
In the event that this Agreement is terminated pursuant to this Section 3.3, STB Digital shall, within thirty (30) days after the effective date of termination, refund to Customer any fees paid by Customer for Services at issue in the breach of warranty, or fees paid by Customer for Services not yet provided not yet delivered to Customer up to and including the date of termination on a pro-rated basis.
The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after becoming aware of the breach of warranties by STB Digital.
No Other Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 8.1, STB Digital HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, INCLUDING ANY WARRANTIES OF: (A) MERCHANTABILITY; (B) FITNESS FOR A PARTICULAR PURPOSE; (C) TITLE; (D) NON- INFRINGEMENT; OR (E) PERFORMANCE OF SERVICES TO ANY STANDARDS, WHETHER ARISING BY LAW,
COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION TO, AND IN NO WAY LIMITING THE FOREGOING, STB Digital MAKES NO GUARANTEES OF SUCCESS RELATED TO THE GOALS OF THE CUSTOMER IN CONTRACTING FOR PROVISION OF THE SERVICES, IN ANY MANNER. FAILURE TO ACHIEVE STATED GOALS OF THE CUSTOMER, WHETHER RESTB DigitalED HEREIN, OR OTHERWISE, SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT BY STB Digital, IN ANY RESPECT, AND NO REFUND OF ANY FEES WHICH ARE PAID, OR DUE AND PAYABLE, SHALL BE MADE IN ANY SUCH EVENT.
Disclaimer of Liability. IN NO EVENT SHALL STB Digital BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, LOSS OF REVENUE OR PROFIT, LOSS OF DATA, LOSS OR DIMINUTION IN REPUTATION OR OTHER VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT STB Digital HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL STB Digital BE LIABLE TO CUSTOMER FROM ANY CLAIMS, LOSSES, OR DAMAGES RESULTING FROM ANY ACTIONS OR OMISSIONS OF STB Digital OR ANY THIRD PARTY IN CONNECTION WITH INVESTIGATIONS OR ACTS UNDERTAKEN BY LAW ENFORCEMENT AUTHORITIES. FURTHERMORE, STB Digital SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS OR DAMAGES THAT ARISE OUT OF, OR RESULT FROM, ANY ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS.
Limitation of Liability. IN NO EVENT SHALL STB Digital’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID TO STB Digital PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Indemnification by STB Digital. STB Digital shall indemnify, defend, and hold harmless Customer against losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (each, a “Claim”) made or brought against Customer by a third party alleging that the use of the Services or Customer Marketing Content as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided that Customer: (i) promptly gives STB Digital written Notice of the Claim; (ii) gives STB Digital sole control of the defense and settlement of the Claim (provided STB Digital may not settle any Claim unless the settlement is accepted by Customer); and (iii) provide STB Digital with all reasonable assistance, at its own expense. STB Digital shall have no obligation to defend or indemnify Customer to the extent that a Claim is based on: (a) modification of the Services or Customer Marketing Content by anyone other than STB Digital or its permitted designee; or (b) use of the Services or Customer Marketing Content other than in accordance with the terms of this Agreement.
Indemnification by Customer. Customer shall indemnify, defend, and hold harmless STB Digital against any Claim made or brought against STB Digital in connection with this Agreement and/or Customer’s use of the Services or Customer Marketing Content, including, but not limited to, negligent, willful, or unlawful acts or omissions of Customer, its officers, employees, and agents for and against allegations that Customer’s use of the Services or Customer Marketing Content breaches this Agreement, infringes or misappropriates the intellectual property rights of a third party, violates any privacy rights or applicable law. In connection with any of the foregoing, Customer shall indemnify STB Digital for any damages finally awarded against, and for reasonable attorney’s fees incurred by, STB Digital in connection with any such Claim.
all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
Survival. The rights and obligations of the parties set forth in Sections 5, 6, 8, 9, 11, 12, 13, 14, 15 and 16, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
Notices. All Notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address or email set forth on the Order Page or in Section 16.13. Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid) to the address set forth on the Order Page (if to Customer) or Section 16.13 (if to STB Digital), or via electronic mail. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 16.3.
Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Amendments. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing and signed by each Party.
Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless expliSTB Digitally set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Assignment. Either Party may assign its rights or obligations under this Agreement. No assignment or delegation, however, shall relieve Customer of any of its obligations under this Agreement.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Governing Law and Dispute Resolution. The Parties agree that all of the rights and obligations of the Parties under this Agreement, including the enforcement thereof, shall be governed by, and construed in accordance with, the laws of the State of Florida, USA without giving effect to the principles of Florida law relating to the conflict or choice of laws. The exclusive venue for disputes relating to or out of this Agreement shall be Broward County, Florida, and Customer hereby waives any jurisdictional venue or inconvenient forum objections thereto. Both parties do hereby mutually agree to waive their right to a jury trial in connection with any dispute or conflict relating to, or out of this Agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be decided by final and binding arbitration in administered by the American Arbitration Association (“AAA”) in Broward County, Florida, USA under its Commercial Arbitration Rules (“Commercial Rules”), and judgment on the award rendered by the Arbitrator may be entered in any court with jurisdiction. The arbitration shall be conducted by one (1) neutral and impartial arbitrator (the “Arbitrator”). The Arbitrator will be appointed by agreement of the Parties, but in the event that the Parties fail to agree on the Arbitrator, the AAA shall appoint an Arbitrator with sufficient understanding of the business and technology issues relevant to resolving the dispute. The Arbitrator shall have the sole power to rule on matters of jurisdiction, arbitrability, timeliness of claims, issue preclusion, and to grant permanent equitable relief. Notwithstanding the foregoing, either Party may seek interim equitable relief (including an injunction or preservation of evidence) in a court of law to the extent that it is necessary to prevent irreparable harm that may be caused to such Party by the breach of this Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in this Agreement, a signed copy of this Agreement delivered by facsimile, email, digital signature service, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Force Majeure. STB Digital shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of STB Digital including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Customer shall be entitled to give Notice in writing to STB Digital to terminate this Agreement.
Comments and Concerns. All feedback, comments, requests for technical support and other communications relating to the Services should be directed to email@example.com, or to Attn: Support, Simply The Best Digital, LLC., 4733 W Atlantic Ave STE C21, Delray Beach, FL 33445