”) provides the terms and conditions pursuant to which GrowthInc LLC, an Indiana Limited Liability Company (“
”) will provide Digital Marketing, Paid Advertising, and/or related Services (defined herein) to Client. As used in this Agreement, “
” 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 AND/OR DIGITAL MARKETING 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. Services. In consideration of the promises of Client set forth herein (including without limitation Client’s payment of the consideration for the Services as herein provided), GrowthInc will provide Client with (i) paid advertising services (including copy and design of ads, emails, and optimizations); (ii) marketing automation (including email marketing campaigns, messaging campaigns, and sales and marketing integrations); (iii) social content generation services (including content generation, distribution, and campaign optimization); and/or (iv) local search marketing services (including review marketing and reputation management) (collectively, as applicable the “Services”). Unless Client purchases a multi-location subscription, Services shall correspond to one unique geographic location, which shall be designated and agreed-upon during the sign-up process. Services for separate locations will increase fees payable by Client hereunder. In connection with the delivery of the Services, GrowthInc will provide Client with access to detailed reporting for the Services using GrowthInc’s online reporting/dashboard.
Client acknowledges that GrowthInc provides other services to its customers, such as paid advertising services and website development services. Such other services, if applicable to Client, are covered by separate terms of service agreements between GrowthInc and Client and are not covered by this Agreement.
2. 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), GrowthInc will provide Client with advertising services intended to promote Client and/or Client’s business through online display/social advertising through online publishers such as Facebook®, LinkedIn®, Amazon®, Instagram®, Google® Ads Display Network, and Twitter®; as well as search engine marketing directed to online search engines such as Google®, Bing®, and Yahoo!® (all such services, collectively, “Paid Advertising Services”).
Paid Advertising Services may involve GrowthInc providing Client with statistical data concerning the effectiveness of the Paid Advertising Services in a given period (“Tracking Information”). Tracking Information may be partially comprised of recorded information resulting from customer or prospect telephone inquiries resulting from the Paid Advertising Services (“Call Tracking Information”); or may be partially comprised of recorded information resulting from data collected from client's website resulting from the Paid Advertising Services ("Pixel Data"). In connection with the delivery of the Paid Advertising Services, GrowthInc will deliver detailed reports to Client using its proprietary reporting system (the “Reporting System”). GrowthInc 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 GrowthInc does not guarantee that such advertising will be displayed in such target locations.
3. Term. GrowthInc will provide the Services to Client on a month-to-month basis (each month during which Services are provided to Client hereunder is referred to herein as a “Subscription Period”). A one-time onboarding fee and the first Subscription Period installment payment is due to GrowthInc on sign-up via credit card or ACH payment. Installment payment amounts are subsequently billed and collected for the upcoming Subscription Period as provided herein.
4. Campaign Period. GrowthInc will provide the Paid Advertising Services to Client on a periodic basis agreed upon by Client and GrowthInc during the sign-up period (the “Campaign Period”). Unless earlier terminated as provided herein, the Campaign Period will begin on the date GrowthInc commences the Paid Advertising Services by submitting placement orders to search engines and/or publishers. Due to applicable start-up requirements and third party search engine or publisher procedures, the Campaign Period start date may not immediately correspond to the date designated in the sign-up documentation. The Campaign Period will end at the time Client’s Advertising Budget (defined herein) is substantially depleted in a given Campaign Period. Generally, a Campaign Period is intended to correspond to a month-to-month advertising cycle; however, GrowthInc cannot guarantee that Client’s Advertising Budget will be fully-utilized within any particular time period. Therefore, Client’s Campaign Period could be shorter or longer depending on the application of Client’s Advertising Budget from time to time. GrowthInc shall have the full and complete authority with respect to the application of the Advertising Budget during the Campaign Period.
5. Campaign Budget and Other Fees. Client agrees to pay the following amounts in furtherance of the Paid Advertising Services in accordance with the payment procedures set forth in Section 5:
a. Campaign Budget amounts agreed upon by Client during the sign-up period, on a recurring basis at the beginning of each Campaign Period, which amounts will be applied from Client’s account retained by GrowthInc, as and when determined by GrowthInc (in its sole and absolute discretion), to secure placement of advertising in connection with the Paid Advertising Services on behalf of Client.
b. Service fees charged by GrowthInc for managing and tracking Client’s campaign during the Campaign Period, including provision by GrowthInc of selection, placement, optimization, formulation, tracking, monitoring and related services toward implementation and management of Client’s campaign during the Campaign Period (collectively, “Management Fees”). Management Fees shall consist of a percentage of the Campaign Budget pursuant to GrowthInc’s Paid Advertising Fee Schedule, as amended from time to time by GrowthInc.
c. If agreed upon by Client during the sign-up period, GrowthInc will also be entitled to receive a one-time onboarding fee with respect to administrative aspects of establishing Client’s Paid Advertising campaign (onboarding to include items such as strategy development, marketing audit, key-word development, pixel installation and set-up, phone tracking set-up, creative services, and other administrative items).
d. GrowthInc will be entitled to collect excess data fees when the monthly limit of 90 minutes of incoming recorded calls is exceeded. The current rate for excess calls over the allotment of 90 minutes is $.20 per minute. These rates may adjust from time to time at GrowthInc’s discretion and client agrees to pay the then current rate. Any such data fees will be billed in the Campaign Period immediately following the Campaign Period in which they are incurred.
The amounts described in Section 6 are referred to collectively as “Campaign Charges”. GrowthInc reserves the right to change any of the Campaign Charges at any time, on written notice to Client. Such changes (if any) will take effect in the Campaign Period immediately following the notice to Client.
6. Payment Terms.
a. Unless otherwise agreed upon by GrowthInc in writing, all Campaign Charges are payable in advance in immediately available funds, in U.S. Dollars, by credit card (Visa, MasterCard or American Express) or automatic checking account withdrawal (“ACH”). Campaign Charges are payable in advance prior to the initiation of each Campaign Period, with the initial payment and associated onboarding fee (if any) being a requirement of the initial Paid Advertising Services and associated campaign.
b. GrowthInc may retain and store Client’s payment information, including but not limited to, credit card number and expiration date or ACH account and routing information. Client agrees that any billing and payment information provided by Client to GrowthInc may be used by third-party payment processors and agents, solely for billing and collection purposes.
c. Due to the nature of the Services, all Campaign Charges expended or earned by GrowthInc for each Campaign Period are non-refundable.
d. Client hereby authorizes GrowthInc to process payment by the credit card or ACH payment method agreed-up by Client (or such other credit card or ACH payment method as is established by Client by notice to GrowthInc from time to time) for all Campaign Charges on a monthly basis. Confirmation of payment of all Campaign Charges for the current Campaign Period shall be a requirement of GrowthInc’s providing any Paid Advertising Services for such Campaign Period. Client acknowledges that all Campaign Charges must be paid before any amounts are spent for the Campaign Period and that GrowthInc may terminate or suspend Paid Advertising Services in the event Client fails to pay such amounts as required herein. Unspent amounts will rollover into the next Campaign Period, with two exceptions: (i) If the Client cancels GrowthInc will keep any unspent amounts; and (ii) if the unspent amount is $10 or less for any bill period, it will not roll over.
e. Client may change its method of payment on 30-days written notice to GrowthInc.
f. In the event Client and GrowthInc agree upon a different Campaign Budget during any Campaign Period, such revised Campaign Budget (and corresponding Campaign Charges) may be applicable in the current Campaign Period, the Campaign Period immediately following the current Campaign Period, or both. GrowthInc will confirm to client by electronic mail the details relating to any different Campaign Budget, and the application of such Budget to the current and following Campaign Periods and any other aspects of such different Campaign Budget.
g. Failure by Client to maintain valid and current payment arrangements with GrowthInc may result in interruption or cancellation of the Paid Advertising Services. Such interruption does not relieve Client of the obligation to pay for Paid Advertising Services already provided to Client by GrowthInc. If GrowthInc 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 GrowthInc from Client, then all amounts due from Client shall be increased so that the Management Fee actually received by GrowthInc after deduction or withholding of any such tax, charge or assessment will equal 100% of the Management Fee otherwise applicable.
h. 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 GrowthInc arising from or relating to enforcement of its rights against Client under this Agreement.
i. Client is not entitled to any credits, rebates, discounts (volume or otherwise) or refunds provided to GrowthInc by any third party online search providers or publishers.
7. Authorization. Client authorizes GrowthInc to act on Client’s behalf as Client’s marketing provider during the initial Subscription Period and all renewal Subscription Periods, with respect to all Services provided by GrowthInc hereunder. Such authorization includes the right to post, publish, and edit Client’s Web business profile information and Internet and social media advertisements and (where elected by Client) to post content to such profiles or advertisements.
8. Copyright. Ownership of content generated by GrowthInc in connection with the Services transfers from GrowthInc to Client (where permitted by third party licensing arrangements) only after payment in full by Client of all invoices applicable to such content. GrowthInc’s portal and any methods of optimization disclosed by GrowthInc to Client cannot be copied or used by Client except as expressly contemplated by this Agreement in connection with the Services, and any such right shall terminate upon termination of this Agreement unless expressly authorized in writing by GrowthInc. Client acknowledges that, at GrowthInc’s expense, a domain name may be registered and hosted with a microsite created for Client in furtherance of delivery of the Services hereunder. The microsite and related domain are integrated into GrowthInc’s proprietary digital marketing system and shall remain the property of GrowthInc and shall not be transferable to Client.
In providing the Services GrowthInc may utilize and/or make available to Client software owned by third parties and licensed to GrowthInc (“Third Party Software”). Client’s use (where permitted) of Third Party Software is governed by software licenses relating to such Third Party Software. These Terms and Conditions do not modify the terms of any Third Party Software license agreements.
a. Client may terminate this Agreement for any reason upon 30 days written notice to GrowthInc. Upon receipt of such notice by GrowthInc, payment shall become immediately due for all previous Paid Advertising Services not yet paid, including the Paid Advertising Services during the 30-day notice period.
c. Upon termination of this Agreement for any reason, Client shall discontinue any use, retention, display or distribution of any of the work product or materials provided to Client by GrowthInc hereunder (including without limitation, GrowthInc’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, GrowthInc shall return to Client, delete or destroy (in GrowthInc’s sole and absolute discretion) all Client Data (defined herein) provided by Client during the term of this Agreement.
d. Termination is a remedy in addition to, and not in place of, any other measure(s) which may be available to GrowthInc in equity or in law.
e. In the event of termination by either party, the indemnification provision contained in Section 16 shall survive any such termination and remain in effect for a period of 3 years after termination.
f. In the event of a termination initiated by GrowthInc due to Client’s breach of this Agreement, GrowthInc shall retain any remaining balance in Client’s account as partial liquidated damages.
Both parties acknowledge and agree to Facebook's Advertsing Policies currently located at https://www.facebook.com/policies/ads/ and also to Facebook's Privacy and Data Policies currently located at https://www.facebook.com/policies, all 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 Facebook and 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 GrowthInc 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.
11. Recording and Tracking of Calls. Client agrees that Client’s telephone conversations with Client’s customers or prospects, which occur as a result of the Paid Advertising Services may be recorded unless Client specifically elects not to have such calls recorded by written notice to GrowthInc. Client agrees that GrowthInc may collect, store, analyze, track and process call meta-data (such as phone numbers, IP addresses, dates and times) relating to such calls, whether or not Client elects not to have such calls recorded. Any customer or prospect calls may begin with an announcement that the call may be recorded for quality assurance and training purposes. Both parties agree that if the customer or prospect continues with the call after this announcement, this constitutes the caller’s de facto consent to the recording. For purposes of quality assurance, assessment of the effectiveness of its services, or all other lawful purposes, GrowthInc may, but is not obligated to, access and review all recorded call data. GrowthInc may delete all recorded call data 30 days after the end of each Campaign Period and shall have no obligation to store or retain such data thereafter. CLIENT REPRESENTS WARRANTS AND COVENANTS THAT IT WILL HAVE ALL NECESSARY RIGHTS TO IMPLEMENT CALL TRACKING FEATURES PROVIDED BY GROWTHINC HEREUNDER. CLIENT ACKNOWLEDGES THAT GROWTHINC DISCLAIMS ALL LIABILITY THAT MAY ARISE AS A RESULT OF PROVIDING SUCH CALL TRACKING SERVICES.
12. Third Party Art. From time to time, Client may request GrowthInc to provide photographs, images, infographics, illustrations or other artwork in connection with GrowthInc’s provision of the Paid Advertising Services. To the extent that such photographs, images, infographics, illustrations or other artwork are sourced by GrowthInc 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. GrowthInc 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 GROWTHINC 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 GROWTHINC, 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 ADVERTISING SERVICES, EXCEPTING THEREFROM, COSTS INCURRED AS A DIRECT AND PROXIMATE RESULT OF GROWTHINC’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
13. Copyright. Ownership of content generated by GrowthInc in connection with the Paid Advertising Services transfers from GrowthInc to Client only after payment in full by Client of all amounts applicable to such content. GrowthInc's Reporting System and any methods of optimization disclosed by GrowthInc to the 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 GrowthInc. Client acknowledges that, at GrowthInc’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 GrowthInc 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 GrowthInc and shall not be transferable to Client.
14. Client Data; License.
a. Client is responsible for providing GrowthInc with current and accurate data necessary for GrowthInc 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 GrowthInc to enable GrowthInc to provide the Paid Advertising Services hereunder. Client hereby grants GrowthInc 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.
b. Client represents and warrants to GrowthInc that: (a) Client owns or has all requisite rights, licenses and permissions to submit the Client Data to GrowthInc for the use contemplated by the Paid Advertising Services; (b) the use by GrowthInc 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.
c. GrowthInc shall have the 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, GrowthInc will exercise reasonable efforts to employ such Keywords within the scope of the Paid Advertising Services. GrowthInc shall not be liable to client or third parties in the event Client requests GrowthInc to use Keywords comprised of trademarks or other protected intellectual property of such third parties (such as competitors). GrowthInc may (but shall have no obligation to), from time to time, remove from Client’s campaign, or suspend the use of, Keywords which GrowthInc determines, in its sole and absolute discretion, may interfere with third party intellectual property rights.
d. While GrowthInc may use Client’s customer lists or customer information for purposes of providing the Services, GrowthInc does not sell or distribute to third parties Client’s customer lists or aggregated customer information.
15. 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 GrowthInc 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.
16. Indemnification. Client shall indemnify, defend and hold harmless GrowthInc, 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 GrowthInc 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.
17. Express Limited Warranty; Limitations on Liability.
(a) Limited Warranty. GrowthInc 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, GrowthInc cannot guarantee search engine result pages or line placement where Client’s business will appear. GROWTHINC 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 GROWTHINC 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 17(a) IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTEES 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. GROWTHINC 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 GROWTHINC’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 TRANSMITTED 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 GROWTHINC’S REASONABLE CONTROL.
(c) No Authority to Modify. No employee, salesperson, vendor or other agent or purported agent of GrowthInc is authorized to make any warranties, representations or guarantees to the contrary of the foregoing, and any such purported warranties, representations or guarantees shall not be relied upon as having been given by or on behalf of GrowthInc. 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 GrowthInc 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 GrowthInc’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 GROWTHINC 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 GROWTHINC OR THE DELAY OR INABILITY TO USE ANY PAID ADVERTISING SERVICES, OR GROWTHINC’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 GROWTHINC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AN ACTION BY GROWTHINC 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 GrowthInc of any past or future marketing plans implemented or to be implemented by Client so that GrowthInc may factor such plans into its planning for the Paid Advertising Services hereunder. GrowthInc shall not be responsible for any search engine guideline penalties caused by Client’s marketing plans, whether or not disclosed to GrowthInc.
18. Confidential Information.
(a) Definition. For purposes of this Section 18, “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 Indiana, 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 GrowthInc may share information about GrowthInc’s customers including basic information about Client with prospective customers for the purpose of marketing GrowthInc’s services. The terms of this Agreement, along with GrowthInc’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 18), 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 18 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.
(a) Assignment. Client may not assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining GrowthInc’s written consent, except that Client may assign this Agreement without GrowthInc’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 GrowthInc; provided that Client provides prompt written notice to GrowthInc 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 GrowthInc in connection with entering into this Agreement or to such other address as provided in writing by Client to GrowthInc for such purposes. Except as otherwise provided in this Agreement, any notice to GrowthInc 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: GrowthInc, 3523 Knoll Rd, Fort Wayne, IN 46809, Attn: Legal Notice. Upon receipt, if a valid e-mail address is provided and remains current, GrowthInc 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 GrowthInc 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 GrowthInc to resolve such technical issues.
(c) Force Majeure. Due performance of any duty or obligation hereunder by GrowthInc 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 GrowthInc's reasonable control. Client acknowledges that GrowthInc 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 GrowthInc has no responsibility for, or control over, third-party social media content requirements or rules applicable thereto.
(d) Severability. If anyone 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 GrowthInc must be in writing and signed by an authorized representative of GrowthInc.
(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.
(h) 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 3). The parties to this Agreement are independent parties.
(i) Resolution of Disputes; Binding Arbitration; No Class Representative Actions or Arbitrations.
(i) ANY AND ALL CLAIMS BETWEEN GROWTHINC AND CLIENT BE RESOLVED IN BINDING ARBITRATION RATHER THAN IN COURT. GrowthInc and Client agree to submit to individual arbitration the resolution of any and all Claims (defined herein) by or between GrowthInc or its affiliates and Client relating to the Paid Advertising Services or these Terms of Service. GrowthInc 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 GrowthInc 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 GrowthInc, which should be sent to GrowthInc at the notice address set forth in Section 15(b), Attention: “Arbitration Notice.”
(iii) CLIENT AND GROWTHINC 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 GrowthInc expressly agree that any Claim is personal to Client and GrowthInc 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.
(j) 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 Indiana 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 Allen County, Indiana 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.
(k) Revisions. In order to meet changes in search engine guidelines or other factors impacting Web and social media content optimization and marketing trends, GrowthInc 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.
Rev. October 23, 2017