Terms and ConditionsDIGI SEARCH's terms and conditions for ongoing digital marketing services.
- Description of Service
DigiSearch is a software tool that provides analysis and content related to paid search campaigns. Different subscription plans within the Service provide additional tools and content. In addition, the Platform provides a connection to a network of paid search experts (the “Optimizers”) and enables the Advertiser to engage with one or more Optimizers in a paid search project (a “Project”).
- Payment for Services
- Paid Plans. Within the Platform, the Advertiser may subscribe to a paid plan. Advertisers subscribed to a paid plan, agree to pay the published monthly or annual fees associated with that plan. If a free trial period is included with a paid plan, Advertiser agrees to be charged at the end of the free trial period, unless canceled by the Advertiser before the end of the trial period. All payments are required in advance of the Services. DigiSearch will not refund any subscription fees already paid.
- Automatic Renewal. Advertiser acknowledges that all paid plans renew for an additional term automatically at the end of every term unless the Advertiser has canceled his paid subscription in the Platform before the end of the current subscription period.
- Pricing Changes. DigiSearch may change the price for the paid subscription from time to time and will communicate any price changes to the Advertiser. Price changes for paid subscriptions will take effect at the start of the next subscription period following the date of the price change. By continuing to subscribe to the DigiSearch Service after the price change takes effect, Advertiser agrees to the new price.
- Payment For Projects. If the Advertiser decides to engage in a Project, his payment will be for the agreed-upon amount in the approved statement of work (the “SOW”).Optimizer will be paid solely by DigiSearch and Optimizer will not have any recourse against the Advertiser if Optimizer is not paid by DigiSearch.
- Non-Refundable Credit Card Payments. DigiSearch will bill all charges to the Advertiser’s credit card. Subscription fees will be billed at the beginning of the Advertiser’s subscription or any renewal. Fees for additional services, including Optimizer projects will be charged to theAdvertiserscredit card on confirmation of the Project by the Advertiser. All fees and charges are nonrefundable. A charge-back is not an option for disputing the validity of any charge in connection with the Service. The Advertiser agrees to indemnify and reimburse DigiSearch promptly for the payment and fees in the event that the Advertiser engages in any and all efforts to charge-back any fees. If the Advertiser wants to use a different credit card or there is a change in credit card validity or expiration date, they can make changes in the account settings section of the Platform.
- Payment Failure. Should the credit card on file fail at the time of renewal, the Advertiser will be notified to update his credit card information.
- Cancellation Policy. Cancellation of DigiSearch’s services goes into effect 30 days after written notice of cancellation by client.
- Agreements. Upon the Advertiser confirming his acceptance of a Project in the Platform, the Advertiser agrees to purchase the Project in accordance with the following agreements: (1) these Terms and Conditions (2) the SOW and (3) the Google Terms and Conditions found at http://www.google.com/ads/terms.
- Parties. The parties involved in Projects are the Advertiser, theOptimizerand DigiSearch. DigiSearch’s role is limited to supplying a virtual venue and hosting of the site to enable initiation of Projects with Optimizers, administering payment to the Optimizer, and facilitating the resolution of disagreements between the Advertiser and Optimizer.
- Account Access. Advertiser acknowledges and agrees that by initiating a Project, the Optimizer has his permission to access the Advertiser’s Google Adwords account as a client manager for the purpose of completing the optimization and tasks listed in the SOW.
- Independent Contractors. Optimizers are independent contractors and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the Optimizers and Advertiser. Except as otherwise provided in this Agreement, neither party has or may represent that it has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.
- DigiSearch is not liable in any way, for loss or damage of any kind that the Advertiser may incur as a result of the Advertiser’s use of or acting in reliance on the Services provided by the Optimizer. DigiSearch shall not be liable to Advertiser or any other person or entity for (i) any information provided to any person or entity by any Optimizer or any Ad Network or any illegal, inappropriate act or act of misconduct on the part of any Optimizer or any Ad Network; (ii) system downtime of DigiSearch, Advertiser, or any Optimizer or any Ad Network; (iii) unauthorized access to, or alteration, theft or destruction of the Advertiser Site, data files or systems or programs through accident, fraudulent means or device by any person or entity other than DigiSearch; or (iv) any claim attributable to errors, omissions or other inaccuracies in the Services by any person or entity other than DigiSearch.
- Estimated Completion Dates. DigiSearch strives to ensure that Optimizers complete all Projects as promptly as possible and within the provided estimated time-frame. All completion times are estimations and are not guaranteed.
- DigiSearch is not acting as a trustee or fiduciary with respect to payments and fees.
- Changes to the Agreements
Occasionally DigiSearch may, at its discretion, make changes to the DigiSearch Service and Agreements. When changes are made to the Agreements that they consider material, DigiSearch will notify the Advertiser through the Service. By continuing to use the Service after those changes are made, the Advertiser is expressing and acknowledging his acceptance of the changes.
- Term and Termination
These Terms and Conditions will continue to apply until terminated either by DigiSearch or by you by deleting your account in the settings section of the Platform, (the “Term”). DigiSearch may terminate the agreement or suspend your access to the DigiSearch Service at any time, including in the event of your actual or suspected unauthorized use of the DigiSearch Service or non-compliance with the Terms and Conditions. If you or DigiSearch terminate the Service, you agree that DigiSearch shall have no liability or responsibility to you andDigiSearch will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.
- Advertiser Acknowledgement and Responsibilities
- Use your judgment on evaluating any recommendations. Advertiser acknowledges that DigiSearch may make general recommendations related to paid search management principles. However, these recommendations are general and the Advertiser is responsible for evaluating the applicability of these recommendations to his own account. The performance of his Adwords account is the Advertiser’s responsibility and DigiSearch makes no claims or representations as to the relevance of its content to the Advertiser’s specific campaign or business goals. Additionally, Advertiser acknowledges and agrees that, despite any recommendation made by DigiSearch of any Optimizer in relation to a Project, Advertiser is responsible for the determination of the suitability of DigiSearch Optimizers for a Project and the work product.
- Account Access. Advertiser acknowledges that by creating a DigiSearch account, Advertiser grants DigiSearch access to the information contained therein, including Advertiser’s AdWords data. Advertiser represents that he has ownership over the AdWords account that is associated with his login.
- AdWords Compliance. Advertiser further represents that his AdWords account is in compliance with and that he is in adherence to AdWord’s terms and conditions and policies. He acknowledges that DigiSearch and its affiliates act in good faith to comply with the AdWords terms and conditions and he holds DigiSearch and its affiliates blameless for any inadvertent violation of these terms.
- Account Information and Data. DigiSearch does not own any Advertiser content provided by you hereunder, provided that you hereby grant DigiSearch a worldwide, royalty-free, non-exclusive right to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Advertiser content for the sole purpose of providing you with the Service and in order to compile, analyze and disclose to third parties aggregated metrics, data and trends related to the use of its offerings.
- License Grant and Restrictions
DigiSearch hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable, worldwide right to use the Service, subject to the terms and conditions of this Agreement (“License”). All rights not expressly granted to you are reserved by DigiSearch and its licensors.
DigiSearch reserves the right at its sole discretion to determine the foregoing and to deny, refuse or discontinue Service to anyone at anytime. You may use the Service only for your internal business purposes and shall not: (i) create Internet “links” to the Service or frame or mirror any DigiSearch content on any other server or Internet-based device without DigiSearch’s advance written permission, (ii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein, or DigiSearch’s sites, servers or networks; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using ideas, features, functions or graphics that are similar to those related to the Service, or (c) copy any ideas, features, functions or graphics of the Service; or (vi) take any action that imposes an unreasonably or disproportionately large load on DigiSearch’s infrastructure.
DigiSearch shall be entitled to adjust the scope of the Service and the underlying technical infrastructure to reflect the continuing development of the Service and technical advances.
- Intellectual Property
Advertiser acknowledges that DigiSearch is continuing to develop and improve the Service and that the Service may be improved based upon feedback provided by Advertisers. Advertiser agrees that DigiSearch alone shall own all right, title and interest, including all related intellectual property rights, in and to the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, data, reports, comments or other information provided by Advertiser or any other party relating to the Services, and any aggregated metrics, data and trends compiled by DigiSearch (collectively “DigiSearch Property”). This Agreement is not a sale and does not convey to Advertiser any rights of ownership in or related to the Service or DigiSearch Property owned by DigiSearch.
The DigiSearch name, the DigiSearch logo, and the product and service names associated with the Service and all related indicia areDigiSearch Property unless designated as owned by third parties, and no right or license is granted to use them. The Platform may include trademarks, service marks or logos of third parties, all of which are property of their respective owners. All goodwill from Advertiser’s use of the DigiSearch Property shall inure to the benefit of DigiSearch.
Advertiser agrees to indemnify and hold harmless DigiSearch and its officers, directors, employees and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), arising from or related to (a) the improper use or access to our Service, (b) a claim alleging Advertiser content infringes the rights of others, or (c) the breach of any of these Terms.
In connection with entering into and performing under this Agreement, each party may from time to time disclose to the other certain Confidential Information. “Confidential Information” means trade secrets, know-how, inventions, techniques, processes, source code, pricing and discount lists and schedules, customer lists, contract terms, customer leads, financial information, sales and marketing plans and other such proprietary information. In addition to the foregoing, each party recognizes that the other party may have received and in the future may receive confidential or proprietary information of a third party (“Third Party Confidential Information”). Any Third Party Confidential Information disclosed by one party to the other shall be deemed to be the disclosing party’s Confidential Information. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not disclose any Confidential Information of the disclosing party and will similarly bind its employees.
Notwithstanding the foregoing, DigiSearch makes Advertiser’s Confidential Information available to independent third parties engaged byDigiSearch to assist in providing the Services provided that such third parties are bound to confidentiality provisions at least as restrictive as those set forth herein. For the avoidance of doubt, Advertiser acknowledges and agrees that the nature of a Project requires that Optimizers will have access to certain Advertiser’s Confidential Information including access to the Advertiser’s AdWords account.
Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Each party’s obligations under this Section 10 with respect to any Confidential Information will terminate if and when a party can document that such information: (a) was already lawfully known to such party at the time of disclosure ; (b) was disclosed to such party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of such party becomes, generally available to the public; or (d) is independently developed by such party without access to, or use of, the other party’s Confidential Information. A party may disclose Confidential Information to the extent disclosure is required by judicial order from a court of competent jurisdiction; provided, however, that prior to such a disclosure, such party will notify the other of such required disclosure and will cooperate with that party, at that party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- Non-Competition and Non-Solicitation
- Non-Competition. During the Term and for a period of one year thereafter, without prior written permission of the Company, Advertiser and any entity on whose behalf Advertiser accesses the Service shall not directly or indirectly market, sell or develop any technology or services that are similar to or competitive with or incorporate features of the Service.
- Non-Solicitation. During the Term and for a period of one year thereafter, without prior written permission of the Company, Advertiser and any entity on whose behalf Advertiser accesses the Service shall not solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Optimizer or employee ofDigiSearch, except as part of a Project in conjunction with the Service. In the event such employment, consultation or work-for-hire event occurs, Advertiser agrees that DigiSearch shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Advertiser, or (b) 25 percent of fees paid to said person if engaged by Advertiser as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Advertiser. In the event of nonpayment in connection with this section, the Company shall be entitled to seek all remedies under law and equity.
If Advertiser is located in a jurisdiction in which such a provision is not enforceable, such provision shall not apply and this Agreement shall be read in its entirety without such provision.
- Disclaimer of Warranties
THE DIGISEARCH SERVICE AND ANY THIRD-PARTY OR USER-PROVIDED DATA, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH DIGISEARCH ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DIGISEARCH, ITS SUPPLIERS, LICENSORS, AND PARTNERS, AD NETWORKS AND OPTIMIZERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
DIGISEARCH, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE ONLINE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICE WILL MEET Advertiser’S REQUIREMENTS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE DIGISEARCH SERVICE, OR THE NETWORK DEVICES AND SERVERS THAT MAKE THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
DIGISEARCH, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF EFFECTIVENESS, ACCURACY, RELIABILITY, OR OTHERWISE.DIGISEARCH WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE OR MAINTAIN ANY DATA.
DIGISEARCH DOES NOT WARRANT OR REPRESENT THAT IT HAS UNDERTAKEN OR WILL IN THE FUTURE UNDERTAKE ANY PARTICULAR INVESTIGATION OR REVIEW AS TO WHETHER ANY LIST OF KEYWORDS, AD COPY, IMAGES OR ANY OTHER MATERIALS PROVIDED BY AN OPTIMIZER IN CONNECTION WITH ANY OF Advertiser’S CAMPAIGNS INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS HELD BY A THIRD PARTY OR VIOLATES ANY OTHER LAW OR REGULATION AND DIGISEARCH SHALL NOT BE LIABLE FOR ANY VIOLATIONS OR ALLEGED VIOLATIONS OF THE FOREGOING BY ANY OPTIMIZER. Advertiser IS RESPONSIBLE FOR UNDERTAKING ITS OWN DUE DILIGENCE OR INVESTIGATIONS IN RELATION TO THE ALL LISTS OF KEYWORDS, AD COPY, IMAGES OR ANY OTHER MATERIALS PROVIDED BY AN OPTIMIZER IN CONNECTION WITH ANY OF Advertiser’S CAMPAIGNS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO Advertiser, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO Advertiser, AND Advertiser MIGHT HAVE ADDITIONAL RIGHTS.
- Reference. Advertiser agrees that DigiSearch can use the Advertiser’s company name and logo in connection with marketing and promoting the Services.
- Assignment or Change in Control. This Agreement may not be assigned by Advertiser without the express written consent of DigiSearch, which consent may be withheld for any reason, but may be assigned by Advertiser subject to the restrictions contained herein to (a) a parent or subsidiary, (b) an acquirer of substantially all of Advertiser’s assets, or (c) a successor by merger. Advertiser’s liability for payments for the Services shall survive such transfer. Any attempted transfer in violation of these provisions shall be void. Any transfer or attempted transfer by Advertiser that would result in a competitor ofDigiSearch having more than a 50% interest in Advertiser shall be a material breach and grounds for termination of this Agreement. This Agreement is freely assignable by DigiSearch.
- No Waiver and Severability. No waiver by any party to a breach of this Agreement shall constitute a waiver of any provision of this Agreement or of any subsequent or other breach or default under this Agreement. In the event that any portion of this Agreement is held to be invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and the remaining provisions of this Agreement shall remain in full force and effect.
- Jurisdiction and Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Colorado without regard to its conflict or choice of law provisions. Any legal action or proceeding relating to this Agreement or the provision of the Service shall be brought exclusively in the state or federal courts located in Boulder County, Colorado. Advertiser hereby submits to the exclusive jurisdiction of such courts and agrees that venue is proper in those courts for any such legal action or proceeding.
- Agency. If Advertiser is an advertising agency or otherwise acting on behalf of another person or entity (each a “Customer”), all references to Advertiser in this Agreement shall be deemed to include Customer. (By way of example only, “Advertiser agrees to indemnify, defend and hold harmless DigiSearch.” shall be read to mean that “both Advertiser as well as the Customer shall indemnify, defend and hold harmless DigiSearch.”). Advertiser represents and warrants that it has been appointed as an agent of Customer, that it is duly authorized to execute this Agreement on behalf of the applicable Customer and that it has full power and authority to bind such Customer to all Terms of Service contained in this Agreement. Advertiser and the applicable Customer shall be jointly and severally liable for all obligations (including, but not limited to payment and indemnification obligations) under this Agreement, and Advertiser waives any rights that might require DigiSearch to proceed against Customer prior to proceeding against Advertiser for obligations arising hereunder.
- Equitable Relief. Advertiser acknowledges that any breach of this Agreement may cause irreparable damage or injury toDigiSearch, for which the award of damages would not be adequate compensation. Advertiser agrees that DigiSearch may bring an action to enjoin Advertiser from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and DigiSearch may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which DigiSearch may be entitled at law or in equity.
- Construction of Agreement. Each party and its counsel have had the opportunity to participate fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.
- No Conflicts. Advertiser agrees not to enter into any contractual provisions in conflict with the Agreement. Any provision of a member contract in conflict with the Terms and Conditions is void.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.