With an Existing website, Business agrees that Company will direct all users who click on Business Ads to a website owned and operated exclusively by Business. Business hereby gives Company permission during the duration of the Campaign to do one or more of the following for users visiting the Business website as part of the Campaign ONLY:
(i) substitute Tracking Phone Numbers for the Business website phone numbers;
(ii) substitute Tracking E-Mail forms for the Business website e-mail addresses;
(iii) place click tracking code on pages (URLs) specified by Business;
(iv) place a frameset above the Business website with the Tracking Phone Numbers and Tracking E-Mail form link;
(v) place a frameset above the Business website with links to the Company website, including, but not limited to, the Companys Local Offers Directory. Business agrees that users visiting the Business website other than as a result of the Campaign will not see any of the above substitutions or modifications. Business agrees that in order for Company to be able to do so, Company may provide a mirrored version of the Business website (Mirrored Site) and that, in order to do so, Business website must be operational, functional, and accessible through the Internet. In addition, Business agrees that, in order for Company to provide the functionality associated with the Mirrored Site, the URL visible above the Mirrored Site to users clicking on the Business Ad will reflect the web site address for the Mirrored Site and NOT that of the Business website. Business agrees that Company is in no way responsible for the operation and functionality of the Business website. Business agrees that all content on the Business existing website complies with the Business Representation section below and otherwise with this Agreh3ent.
Campaign Management Fees:
Campaign Management Fees shall refer to the monthly amount charged by Company for managing Campaigns. These Campaign Management Fees are to be collected in addition to the Actual Campaign Spend and will be presented to the Business at the time the Advertising Order is placed. Company reserves the right to change the amount it charges for its Campaign Management Fees at any time, said changes to be presented to the Business at the time the order is placed.
Campaign Credits:
Campaign Credits shall refer to any financial credits issued back to the individual Business user account responsible for placing the Campaign order as a result of Campaigns that have ended where the actual amount paid for any Campaign (excluding the Campaign Management Fee) exceeds the Actual Campaign Spend. Campaign Credits are credits to the individual Business users account and can be applied to future Campaigns for a period up to one (1) year after they are issued to the Business user. After one (1) year, Company reserves the right to limit the redemption of Campaign Credits. Please refer to the Cancellation & Refund Policy section below for further terms & conditions regarding the calculation and issuance of campaign credits.
Promotional Credits:
Promotional Credits shall refer to one-time credits issued to the individual Business user account, which may be applied against the Campaign Budget to pay for the Campaign. Unlike Campaign Credits, Promotional Credits are not redeemable for cash and are further subject to the Account Terms & Conditions contained within this Agreh3ent.
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General. All rates (including Costs per Visit) are subject to change upon notice. Company reserves the right to refuse or cancel any Advertising, with or without cause, at any time.
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Term of Advertising Agreh3ent. The term of this Advertising Agreh3ent commences on the Order Date and terminates on the Actual End Date or on the date that the last of the required deliverable ith3s, including payment, are delivered to the Company, whichever is later.
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Terms of Payment. Except as expressly provided below, payment for Advertising shall be made at the time the Advertising Order is placed with Company. At that time, Business will be responsible for paying for the full amount of the Campaign Budget and the sum of the Campaign Management Fees (the monthly Campaign Management Fees multiplied by the Target Duration, in months). Payment may be made by credit card, by check, or by electronic check. Business represents that it either owns or has been given permission to use the method of payment used to purchase Advertising and that Business, and not the Company, shall be responsible for the full amount of any unauthorized or illegal transactions, in addition to any other applicable fees or penalties. If Company elects, in the exercise of its sole discretion, it may agree to accept payment later than the time the Advertising Order is placed. In that event, Company shall submit invoices to Business for payment. Invoices will be mailed every month reflecting any campaign activity during that month.Business shall pay all invoices submitted by Company within fourteen (14) days of the date of the invoice. Amounts due and owing by Business that are not paid when due shall bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) until paid in full. In the event of any failure by Business to make payment, Business will be responsible for all reasonable expenses (including attorneys fees) incurred by Company in collecting such amounts. All payments due here-under are in U.S. dollars and are exclusive of any sales, use or similar applicable taxes. Business shall promptly pay all such taxes and any associated interest and penalties.
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Cancellations & Refund Policy. Business may cancel Campaigns by executing a Stop Campaign command through the Companys website only as provided in, and subject to the terms of, this Agreh3ent. If Business cancels any Campaign, in whole or in part, Business shall pay (to the extent that it has not theretofore paid): (i) the Actual Campaign Spend up to the time Business cancels the Campaign, including any amounts spent thereafter notwithstanding Companys efforts to terminate the Campaign (it being understood that, at the time that Business elects to cancel a Campaign, it may be too late to pull some scheduled advertisements), plus (ii) any early termination fees charged by any Publisher or other third party; plus (iii) the Campaign Management fees for each month the Campaign is active (for partial months, Business will owe a full months Campaign Management Fees); plus (iv) the amount of any Promotional Credit used to pay for any of the Campaign, plus (v) a Cancellation Fee. The Cancellation Fee is currently $50, and is subject to adjustments from time to time. If Business has paid more for a Campaign that it cancels than it is obligated to pay under this Section 5, Company will issue Business a Campaign Credit pursuant to Section 6 in the amount by which such actual payment exceeds the amounts owing under this Section 5.
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Campaign Credits. Campaign Credits are issued to the individual who originally paid for the Campaign on behalf of Business, even if another individual cancels the Campaign. Campaign Credits may be used to purchase additional Advertising and will be deducted from the Campaign Budget at the time a subsequent Advertising order is placed. Campaign Credits are non-transferable. If a Business does not wish to use the Campaign Credits for a future Advertising order, the user who placed the Advertising order must, in writing, request a refund from Company a request that is subject to the verification of the users identity by Company. All refunds will be issued to the individual who placed the Advertising order. If the Advertising order was paid for by credit card, the refund will be issued back to that same credit card; if that credit card is no longer valid, the Business forfeits its rights to the refund. If the Advertising order was paid for by check, electronic check, money order, or by cash, Company will mail a check in the amount of the Campaign Credit to the individual who placed the Advertising order. Once the written request for a refund has been received and verified by Company, Company agrees to mail check within thirty (30) days. Company is not responsible for checks lost in the mail, sent to an address that has not been correctly provided by Business, or made payable to a name that has not been correctly provided by Business.
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Advertising Estimates. Company makes no representations, warranties or guarantees of any kind as to the level of sales, purchases, clicks, sales leads or other performance that Business can expect from Advertising. Any estimates provided by Company to Business are not intended to create any binding obligations or to be relied upon by Business. Business acknowledges that no Company personnel are authorized to make estimates that Business may rely on and that Business is not relying upon any such estimate or any such representation, warranties or guarantees.
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Advertising Information, Materials & Modifications. Business shall provide Company with true, accurate and current information for all Ads placed with Publishers. Business certifies that it has the legal right to use all information, names, trademarks and search terms it provides or includes in its Ads. Business will provide all materials for the Advertising in accordance with Companys policies in effect from time to time, including without limitation the manner of transmission to Company and the lead-time prior to publication of the Advertising. Business agrees that Company has the right but not the obligation to make modifications to Ads prior to their delivery to Publisher and further understands that, once Ads are delivered to Publisher, Business may be limited in its ability to make further modifications to said Ads. Business hereby grants to Company a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute in accordance herewith the Ads and any derivative works based thereon created by Company here-under.
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Publishers. Company shall determine, in the exercise of its sole discretion, which Publishers to use in connection with any Campaign. Business acknowledges that Company does not produce, operate or transmit the Internet sites or services on which Ads may appear with the exception of Companys Directory — and that Company acts only as a sales representative or reseller of advertising inventory or listing services for the operators of such Internet sites or services.
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Positioning. Except as otherwise expressly provided in this Agreh3ent, positioning of Ads within the Company Directory or on any page of Companys website is at the sole discretion of Company. Positioning of Ads on Publisher sites is at the sole discretion of Publisher.
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No Proof of Advertising. Business understands that Company is under no obligation and may simply not be able to provide any samples of your Ads in the context of any Publishers website or Companys Directory.
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Statistics & Reporting. Unless specified otherwise in this Agreh3ent, Company makes no guarantee with respect to usage, visit, or cost per visit statistics for any Ads. Business acknowledges that any such statistics provided by Company shall be conclusive and binding on Business for all purposes of this Agreh3ent and not subject to review or challenge by Business for any reason.
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Renewal. Except as expressly set forth in this Agreh3ent, any renewal of any Campaign is subject to acceptance of the then current version of this Agreh3ent, which is subject to change at any time. From time to time, Company, at its sole discretion, may provide Business with the option to automatically renew (“Auto Renew”) a campaign. Business may choose from one of two different Auto Renew options. In the first option (“Auto Renew – Once per Month”), Business agrees that campaign will be automatically renewed and the Business charged as soon as the original campaign has reached its Campaign Budget and its Target Duration has been reached or exceeded. Business acknowledges that the campaign may be paused temporarily under this option once its Campaign Budget has been reached, but before its Target Duration has been reached. In the second option (“Auto Renew – Immediately”), Business agrees that campaign will be automatically renewed and the Business charged as soon as the original campaign has reached its Campaign Budget, whether or not its Target Duration has been reached, and even if its Target Duration has been exceeded. Business understands that Company, at its sole discretion, may set either Auto Renew option on as a default campaign setting, though, in the event Company sets the default to Auto Renew on (whether Auto Renew – Once per Month or Auto Renew – Immediately), Company will make available to Business the ability to turn the Auto Renew option off through Companys web application.
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No Assignment or Resale of Ad Space. Business may not resell, assign or transfer any of its rights hereunder. Any attempt by Business to resell, assign or transfer such rights shall result in immediate and automatic termination of this Agreh3ent, without liability to Company.
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Right to Reject Ads. All contents of Ads are subject to Companys approval. Company reserves the right to reject or cancel any Ad, Agreh3ent, URL link, or Publisher position commitment, at any time, for any reason whatsoever (including belief by Company that any placement thereof may subject Company to criminal or civil liability). This right to refuse a listing does not constitute endorsement of any Ad that is accepted by Company, nor does it constitute a warranty that Company will continue to run an Ad once accepted. Company does not have any obligation to inspect ads or to reject ads that it inspects regardless of anything relating to those ads.
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Business Representations; Indemnification. Business represents and warrants to Company that Business holds all necessary rights to permit the use of the Advertising by Company for the purposes contemplated under this Agreement; and that the use, reproduction, distribution, transmission or display of the Ads, any data regarding users, and any material to which users can link, or any products or services made available to users, through the Ads will not (a) violate any criminal laws or any rights of any third parties or (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. Business agrees to indemnify, defend and hold Company harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) breach (or alleged breach) of any of the foregoing representations and warranties, or (ii) any third party claim arising out of or in connection with use of or access to the Advertising or any material to which users can link, or any products or services made available to users, through the Advertising or to which the Advertising relates. Further, you agree to indemnify and hold Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of this Agreh3ent, or your violation of any rights of another.
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Confidentiality. “Confidential Information” shall mean (i) Ads, prior to publication, (ii) the Agreh3ent and any Company statistics which shall be deemed Company Confidential Information, and/or (iii) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” During the term of this Agreh3ent, and for a period of two years following any Official End Date, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this Section 17 by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority.
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Press Releases. Company shall be permitted to identify Business as a Company client and may use Business name in connection with Company’s marketing materials. Subject to the prior approval of each party, Company may elect to issue a joint press release announcing the Business marketing partnership with Company, which approval shall not be unreasonably withheld.
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Cancellation and Termination: Cancellation of services requires a 30 day notice, submitted to admin, in writing and signed by an authorized representative of Client. This allows Higher Images the time necessary to process changes to billing and services as well as cancel any outside directory subscription services, if applicable, etc.
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LIMITATION OF LIABILITY. BUSINESS EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE UNDER THIS Agreement FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR Exemplary DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), REGARDLESS OF THE CAUSE OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SHALL HAVE NO LIABILITY FOR DAMAGES RESULTING FROM:
(i) THE USE OR THE INABILITY TO USE THE SERVICE;
(ii) THE COST OF Procurement OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE;
(iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
(iv) Statements OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR
(v) ANY OTHER MATTER RELATING TO THE SERVICE OR THIS Agreement. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS Agreement ARISING OUT OF OR IN CONNECTION WITH ANY CAMPAIGN, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM BUSINESS FOR SUCH CAMPAIGN.In the event that Company fails to publish an Ad in accordance with this Agreh3ent, or in the event that Company fails to spend, on behalf of the Business, the full Campaign Budget by the Official End Date, or in the event of any other failure, technical or otherwise of such Advertising, the sole liability of Company and exclusive remedy of Business shall be limited to, at Companys sole discretion, the issuance of a Campaign Credit pursuant to Section 6. In no event shall Company be liable for any act or omission, or any event directly or indirectly resulting from any act or omission, of Third Parties (if any). Without limiting the foregoing, Company shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of Company. Business acknowledges that Company has entered into this Agreh3ent in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
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Choice of Law and Forum. This Agreh3ent and the relationship between you and Company shall be governed by the laws of the Commonwealth of Pennsylvania applicable to contracts entered into and performed in Pennsylvania by residents thereof. Any claim by either party hereto against the other party hereto arising out of or in connection with this Agreh3ent or the Service shall be brought in a court of competent jurisdiction located in the county of Allegheny, state of Pennsylvania; provided that administrative and other non-judicial actions may be brought in any location.
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Waiver and Severability of Terms. The failure of Company to exercise or enforce any right or provision of this Agreh3ent shall not constitute a waiver of such right or provision. If any provision of this Agreh3ent is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision to the extent possible under applicable law, and the other provisions of this Agreement remain in full force and effect.
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Transferability. Business shall not assign, delegate or otherwise transfer any of its rights, obligations or duties of performance hereunder, and any purported assignment, delegation or other transfer in violation of this Section 23 shall be null and void. Company may assign, delegate or otherwise transfer any of its rights, obligations or duties of performance hereunder upon notice to Business in connection with any assignment, license or other transfer of any Company assets relating to the Service or any rights therein.
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This Higher Images service for Web Tracker is powered by a second party. Accordingly, the terms & conditions of the service are by and between your business and Higher Images, Inc. and Call Accelerator, second party, technology partner.
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Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreh3ent must be filed within one (1) year after such claim or cause of action arose or be forever barred; provided that this Section 24 shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.
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The section titles in this Agreh3ent are for convenience only and have no legal or contractual effect.
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Destination Pages. Company may provide Business with a website (Destination Page) as part of its Services. While Company will take reasonable measures to ensure that the Destination Page is generally accessible through the Internet, the Company does not warrant that Destination Page can be accessed
(i) through all Internet browsers;
(ii) through any device that can access the Internet. Nor does the Company warrant that the Destination Page can be accessible 24 hours a day and 7 days a week, whether or not the Company is hosting the Destination Page on its own servers or contracting with another business entity to provide the hosting services for those Destination Pages. Company shall have no liability in connection with any failure of availability or usability of any Destination Page or other Internet site.
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Hosting Access: All sites that host with us must allow us admin access to the website if applicable (WordPress, Joomla etc) for security reasons. This allows to ensure that the server is hacked and allows to apply any security patches that may be applicable.
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Termination of Services: If Search Engine Marketing services are terminated by the client, it will be the client’s responsibility to recover any unspent advertising funds from the publisher (Ex. Google, Yahoo, Facebook, etc.).
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Business acknowledges and agrees that the provisions of this Agreh3ent that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this Agreh3ent that are fundamental to the parties understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of this Agreh3ent and shall be enforced regardless of any breach hereof or other occurrence or condition relating in any way to this Agreh3ent or the Services. Without limiting the generality of the foregoing,
Business agrees that all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause any exclusive rh3edy under this Agreh3ent to fail of its essential purpose.
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Site Suspension: Occasionally internet publishers (Google, Bing, Yahoo, Facebook, etc.) will suspend an advertiser’s website and campaign when they detect a policy violation or problem with their website. Higher Images will work with the publisher to resolve any issues and get the campaign re-instated. During this period, all administration fees will continue and no refunds will be issued. Higher Images stipulates that resolving issues with internet publishers is a part of our services and we are therefore entitled to compensations.In addition, Higher Images will not be held liable for any website problems or issues that lead to a campaign suspension.
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Agency Relationship. Business further represents and warrants that, in the event it is purchasing advertising on behalf of another business (“Advertiser”) it has been authorized by each Advertiser to act as such Advertisers agent in all respects relating to the Services and this Agreh3ent, including, without limitation, the making of any elections or giving of any consents. Without limiting the generality of the foregoing, Business agrees on behalf of each Advertiser that such Advertiser shall be bound by all of the terms and conditions of this Agreh3ent and that, in particular, with regard to the Tracking Information section above, Business further warrants and represents that it has fully explained the different Tracking Information that may be obtained through the Advertising to each Advertiser and that each Advertiser has agreed to the terms contained therein.
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Messenger Terms and Conditions
All Advertising is subject to publisher’s approval. The messenger reserves the right to reject or revise any advertising, at any time, for any reason.
All advertising which simulates “news-style” (or advertorial) is required to carry the word “advertisement” in the ad.
Cancellation
of any advertising must be received in writing in writing prior to the space reservation deadline. Any cancellation after the space reservations deadline will be billed at 100%.
Advertisers requesting extensive changes to ad copy after original copy has been set will be charged for required makeover time at a rate of $30 per hour.
PAYMENT TERMS
:
All advertisements are to be paid at time of order.
All “Going out of business” advertisements will be accepted on a prepaid basis only.
All political advertisements will be excepted on a prepaid basis only.
Monthly automatic ACH and credit card debts are available.
The Messenger reserves the right to hold an advertiser’s insertion for delinquent account balances or nonpayment.
LIABILITY
:
Advertiser shall assume responsibility and liability for all content (including pictorial representations and graphic artwork) of advertisements placed by the Messenger and shall assume full responsibility for any claims arising there from made against the messenger it’s owners, agents and employees.
Advertiser agrees to indemnify and hold the Messenger harmless of any and all expenses or losses, including but not limited to attorneys fees and legal judgments occurred by the Messenger for any reason and any and all claims arising out of publication of any advertisement place by the advertiser.
The Messenger shall not be liable for any reproduction or typographical error’s which do not lessen the value of the advertisement and will not be subject to allowance. The publishers liability for other errors or omissions in connection with and advertisement is strictly limited to publication of the advertisement and any subsequent issue or in therefund of any monies paid for the advertisement.
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Website Terms and Conditions
Whilst every endeavor will be made to ensure that the website and any scripts or programs are free of errors, Higher Images Inc. cannot accept responsibility for any losses incurred due to malfunction, the website or any part of it.
The website, graphics and any programming code remain the property of Higher Images Inc. until all outstanding accounts are paid in full.
Any scripts, cgi applications, php scripts, or software (unless specifically agreed) written by Higher Images Inc. remain the copyright of Higher Images Inc. and may only be commercially reproduced or resold with the permission of Higher Images Inc..
Higher Images Inc. cannot take responsibility for any copyright infringements caused by materials submitted by the client. We reserve the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material.
Any additions to the brief will be carried out at the discretion of Higher Images Inc. and where no charge is made by Higher Images Inc. for such additions, Higher Images Inc. accept no responsibility to ensure such additions are error free and reserve the right to charge an according amount for any correction to these or further additions.
The client agrees to make available as soon as is reasonably possible to Higher Images Inc. all materials required to complete the site to the agreed standard and within the set deadline.
Higher Images Inc. will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.
Higher Images Inc. will not be liable or become involved in any disputes between the site owner and their clients and cannot be held responsible for any wrongdoing on the part of a site owner.
Higher Images Inc. will not be liable for any costs incurred, compensation or loss of earnings due to the work carried out on behalf of the client or any of the clients appointed agents.
Higher Images Inc. will not be liable for any costs incurred, compensation or loss of earnings due to the unavailability of the site, its servers, software or any material provided by its agents.
A deposit of 50% is required with any project before any design work will be carried out.
Once a website has been designed and completed the final balance of payment is then due in accordance with our payment terms. There are no exceptions to this, i.e If the client decides they no longer want the site, as they have commissioned the work and paid a deposit they are still obliged to pay for the work that has been done. Non payment will result in legal action being taken if necessary.
Higher Images, Inc. requires the cooperation of clients for input and feedback for the website build-out process. In the event that Higher Images cannot get in touch with a client, or a client continuously fails to communicate with Higher Images by failing to respond to requests, inquiries, emails, and/or phone calls in regard to the projects, Higher Images reserves the right to suspend a project. If a project is suspended and client wishes to re-instate the project, an activation fee is required to make it active again.
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Search Magnet Local®, Terms and Conditions
Search Magnet Local®
, and it’s parent company,
Higher Images, Inc
. (“
Search Magnet Local®
“) provides services to include online technology for building websites, widgets, tracking, submission of URLs to search engine and directories for listing in directory industry service that allows businesses to post their business listing once and have it posted to all major Online Yellow Pages, Search Engines, 411 Directories and other vertical industry directories with additional services of providing Web site optimization and online advertising services.
These terms and conditions apply to purchase of Services. You agree to be bound by these terms and conditions. If you do not accept these terms and conditions, you must refrain from purchase. If you do not comply and/or continue to comply with the Terms of Service, Higher Images Inc. may terminate your services and your right to access the service. BY USING THIS WEBSITE AND ANY OF ITS ASSOCIATED SERVICES AND FEATURES, YOU INDICATE YOUR UNCONDITIONAL ACCEPTANCE OF THE FOLLOWING TERMS OF SERVICE (“TERMS”) AND Search Magnet Local® REVIEWS’S
PRIVACY POLICY
. PLEASE READ THEM CAREFULLY, AS THEY MAY HAVE CHANGED SINCE YOUR LAST VISIT. IF YOU ARE A COMPETITOR OF Search Magnet Local® YOU DO NOT HAVE THE RIGHT TO USE THIS WEBSITE.
Search Magnet Local®
, maintains the site as a service to our clients that have engaged us to gather ratings and users (“you”, “Clients” or “Users”, as applicable) who visit and use the Site following registration and subject to the payment of any applicable fees. These Terms apply to all services and features available on this website and its related sub-domains (the “Site”), (i) which are publicly accessible or (ii) to which you have access pursuant to your registration, including without limitation the Search Magnet Local® Reviews Widget / API (collectively, the “Services”).
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ACCOUNT REGISTRATION
To register for Services and create an appropriate account, you must complete the registration process by providing Search Magnet Local®, with complete and accurate information as prompted by the registration process, including your e-mail address, and, if applicable, a password. If any Services for which you register are fee-based Services, you may also be required to provide
Search Magnet Local®
, with a valid credit card, organization, administration, and other billing information. You shall protect your username and password and are solely responsible for any and all use that occurs under your account. You agree to notify
Search Magnet Local®
immediately of any unauthorized use of your account or any other breach of security.
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LICENSE TO CONTENT.
2.1 If you are a Client you hereby grant
Search Magnet Local®
, a non-exclusive right and license to use, copy, display, prepare derivative works of and distribute any Content provided by you for use in connection with the Services. The term “Content” means all information, text, images, data, links, software programs, Services or other material posted by you or a third party on the sections of the Site that are (i) publicly accessible or (ii) available to you pursuant to the Services for which you have registered, whether created by
Search Magnet Local®
or provided by a third party for display on the Site and whether viewed on-line or printed by you. The term “Third Party Content” means all Content that has been provided to the Site by someone other than you. 2.2 Subject to these Terms,
Search Magnet Local®
hereby grants to you a limited, non-transferable, non-exclusive, right and license to access and use the Third Party Content (as herein defined) of the Site and the Services for which you have registered.2.3 You may view, copy, download, and print Third Party Content that is available to you on the Site, subject to the following conditions:
(a) The Third Party Content may be used solely for your internal informational and business purposes, unless otherwise expressly provided on the Site with respect to the Services for which you have registered. No part of the Site or its Third Party Content may be reproduced, transmitted or otherwise distributed in any form to any third party, by any means, electronic or mechanical, including photocopying and recording for any other purpose.
(b) To the extent any Service permits you to display Third Party Content on your own website, such Third Party Content may only be displayed on a single website that represents a single entity or brand, unless otherwise expressly provided on the Site with respect to such Service.
(c) Copyright, trademark, and other proprietary notices on any Third Party Content copied by you may not be removed or obscured.
2.4 Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Site, the Services or any Third Party Content displayed on the Site, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with our prior written permission or the permission of such third party that may own the trademark or copyright of material displayed on the Site.
2.5 ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY
Search Magnet Local®
.
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INTELLECTUAL PROPERTY RIGHTS.
3.1 Unless otherwise noted, all Content contained on the Site is the property of
Search Magnet Local®
and/or its affiliates or licencors, and is protected from unauthorized copying and dissemination by United States copyright law, patent law, trademark law, international conventions and other intellectual property laws. Product names are trademarks or registered trademarks of their respective owners.3.2 By submitting Content to the Site, you grant
Search Magnet Local®
a world-wide, royalty-free, perpetual, irrevocable, non-exclusive license to use, copy, distribute, reproduce, modify, adapt, create derivative works from, and publicly perform or display such Content. This license shall remain in effect until we permanently delete the Content from our systems.
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CONTENT SUBMITTED BY USERS.
4.1 If you choose to provide information to register for or participate in a Service, you agree that you will provide accurate, complete, and up to date information as requested on the screens that collect information from you. Please refer to
Search Magnet Local®
Privacy Policy
for information on our practices for handling personally identifiable information.4.2 If you submit any Content to the Site, to the extent such Content constitutes a review of a third party website or third party product or service, you agree that you shall not post any substantially similar Content on any other commercial website that permits its users to post website, product or service reviews. Nothing in these Terms shall prohibit you from posting such Content on your personal website or blog for non-commercial purposes.
4.3
Search Magnet Local®
is not responsible or liable for the conduct of Users or for views, opinions and statements expressed in Content submitted through the Site.
Search Magnet Local®
does not pre-screen material submitted to the Site. With respect to such Content posted on the Site,
Search Magnet Local®
acts as a passive conduit for such distribution and is not responsible for Content. Any opinions, advice, statements, services, offers or other information in Content provided by any Users or Clients are those of the respective author(s) and not of
Search Magnet Local®
.
Search Magnet Local®
neither endorses nor guarantees the accuracy, completeness, or usefulness of any such Content. You are responsible for ensuring that Content submitted by you to the Site is not provided in violation of any copyright, trade secret or other intellectual property rights of another person or entity or of any applicable law. You shall be solely liable for any damages resulting from any infringement of copyrights, trade secret, or other intellectual property rights, or any other harm resulting from your uploading, posting or submission of Content to
Search Magnet Local®
and/or the Site.
4.4
Search Magnet Local®
has the right, but not the obligation, to monitor Content submitted to the Site to determine compliance with these Terms and any other applicable rules that we may establish from time to time.
Search Magnet Local®
has the right, in our sole discretion, to edit or remove any Content submitted to or posted in any online discussion forum or chat room provided through the Site. Without limiting the foregoing, Search Magnet Local® has the right to remove any Content that
Search Magnet Local®
, in its sole discretion, finds to be in violation of these Terms or otherwise objectionable. You are solely responsible for the Content that you post to the Site.
4.5 You hereby authorize
Search Magnet Local®
and/or
Search Magnet Local®
Reviews to publish your Content, and Content referencing you which has been submitted to
Search Magnet Local®
by others, to third party websites, such as Google and Yelp, using your and/or
Search Magnet Local®
Reviews’s Clients’ user accounts with such third party websites. You agree that Content you submit to
Search Magnet Local®
, and your authorization of
Search Magnet Local®
Reviews to publish such Content on third party websites via your user account with such websites, shall comply with the terms of service, content guidelines and policies, and any other obligations, requirements or restrictions imposed by such third party websites and that you are subject to all obligations, requirements and restrictions set forth therein and hereby agree to indemnify and hold harmless Search Magnet Local® and its officers, directors and employees, harmless from and against any and all losses, claims, damages, suits, expenses, costs and other liabilities that arise from the Content and the posting of the Content to a third party site on your behalf, including without limitation any and all claims that the Content or posting of the Content violates the terms of service, content guidelines and policies, and any other obligations, requirements or restrictions imposed by such third party websites or by
Search Magnet Local®
herein. You acknowledge that
Search Magnet Local®
Reviews will not be able to remove the Content once it has been posted to a third party website. If the merchant with respect to which the Content was posted disputes the Content, you will be contacted and the dispute will be resolved using
Search Magnet Local®
Reviews’s standard dispute resolution process. In addition, if you are a merchant and have provided
Search Magnet Local®
Reviews with access to your user account for a third party website, you authorize
Search Magnet Local®
Reviews to monitor your user account with such third party websites to enable
Search Magnet Local®
Reviews to provide you with reporting, metrics and related information with respect to the postings made via your user account. You acknowledge that Search Magnet Local® has no responsibility for such third party websites, or the acts or omissions of the owners of such websites, and shall have no responsibility for the availability of such third party websites or the inclusion or removal of any Content posted thereon. Further,
Search Magnet Local®
Reviews does not endorse any such third party websites or the information, advertising or content made available thereon. You acknowledge that
Search Magnet Local®
Reviews shall not be liable for any loss, damage, claims, suits or other liabilities you may incur as a result of
Search Magnet Local®
making available the option for you to post your Content through
Search Magnet Local®
on such third party websites or otherwise.
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RESTRICTIONS ON USE
5.1 By accessing our website or a service provided through our website, you agree to abide by the following standards of conduct. You agree that you will not, and will not authorize or facilitate any attempt by another person to, use our website or any related service to:(a) Transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by
Search Magnet Local®
in its sole discretion.
(b) Post defamatory statements.
(c) Post hateful or racially or ethnically objectionable Content.
(d) Post Content which infringes another’s copyright, trademark or other intellectual property right, or misappropriates at trade secret.
(e) Post unsolicited advertising or solicitations or unlawfully promote products or services.
(f) Harass, threaten or intentionally embarrass or cause distress to another person or entity.
(g) Impersonate another person.
(h) Promote, solicit, or participate in any multi-level marketing or pyramid schemes.
(i) Exploit children under 18 years of age.
(j) Engage in disruptive activity such as sending multiple messages in an effort to monopolize the forum.
(k) Introduce viruses, worms, Trojan horses and/or harmful code to or otherwise attempt to disrupt or interfere with the Site.
(l) De-compile, reverse engineer or obtain unauthorized access to any software or computer system through the Site.
(m) Invade the privacy of any person, including but not limited to posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age).
(n) Solicit personal information from children under 13 years of age.
(o) Violate any federal, state, local, or international law or regulation.
(p) Encourage conduct that would constitute a criminal or civil offense or violation of these Terms.
5.2 The foregoing list is only representative of the conduct not permitted under these Terms and is not exhaustive.
Search Magnet Local®
does not screen the behavior of Clients or Users and is not liable for their actions or violations of these Terms. If you suspect a Client or User is in violation of these Terms, please contact
Search Magnet Local®
5.3 The use of this
Search Magnet Local®
is subject to the following terms of use:
a) The content of the pages of this website is for your general information and use only. It is subject to change without notice.
b) Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
c) Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
d) This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
e) All trademarks reproduced in this website, which are not the property of, or licensed to the operator, are acknowledged on the website.
f) Unauthorized use of this website may give to a claim for damages and/or be a criminal offense.
g) From time to time this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).
h) You may not create a link to this website from another website or document without
Search Magnet Local®’s
prior written consent.
i) Your use of this website and any dispute arising out of such use of the website is subject to the laws of Pennsylvania.
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Search Magnet Local® No Guaranteed Placements
Subscribers to
Search Magnet Local®
service understand that we make no guarantees about placements or positioning with the third party directories or publishers to whom we provide the data. We make every effort to ensure these directories use the data in accordance with our policies and that they publish any changes that are made by the users. However, we cannot guarantee this nor any time frame associated with posting or corrections or deletions. We are happy to respond to questions or concerns about this via mail or email.
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Search Magnet Local®’ No Refunds
There are no refunds for fees paid for the
Search Magnet Local®
websites or Directory Posting service. Subscribers will be able to make any required changes through their login account, including request to take the account offline. If there is any difficulty or questions about this, you may write or email us. You will receive notices from
Search Magnet Local®
to the email listed on your account.
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Search Magnet Local® No Guaranteed Placements
Subscribers to
Search Magnet Local®
service understand that we make no guarantees about placements or positioning with the third party directories or publishers to whom we provide the data. We make every effort to ensure these directories use the data in accordance with our policies and that they publish any changes that are made by the users. However, we cannot guarantee this nor any time frame associated with posting or corrections or deletions. We are happy to respond to questions or concerns about this via mail or email.
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Search Magnet Local® Termination
Cancellation of services requires a 30 day notice, submitted to admin, in writing and signed by an authorized representative of Client. This allows Higher Images the time necessary to process changes to billing and services as well as cancel any outside directory subscription services, if applicable, etc.
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Social Media Marketing and Development Terms and Conditions
AUTHORIZATION- Client grants Higher Images the authority to create a Business/Fan Page/profile on Client’s behalf. Client also grants Producer the authority to create a Personal Profile (if Client does not already have one) on Client’s behalf. Client also grants Producer the authority to create a Gmail account on Client’s behalf (solely to assist with Facebook/Twitter/social media accounts set-up and only where Client does not already have a Personal Profile on Social Media websites). Upon completion of the Project, Higher Images shall no longer have any authority with respect to Client’s Facebook and (as relevant) Gmail account(s) and Client is advised to change all relevant passwords at that point to maintain privacy.
Facebook/Twitter/Social Media Websites Rules- Client acknowledges and understands that Client and Client’s Business/Fan Page are subject to Facebook/Twitter/Social Media Websites terms and conditions. Client also acknowledges and understands that non-compliance with Facebook/Twitter/Social Media Websites terms and conditions can cause Facebook/Twitter/Social Media Websites to terminate Facebook/Twitter/Social Media Websites profiles, pages and other privileges.
AGE-Client certifies that he or she is at least 18 years of age.
RESERVATION OF RIGHT- Higher Images reserves the right to refuse service to anyone for any reason or no reason at all. In this situation, provided no effort has been expended on the Project, Higher Images will refund the fee paid by Client. Where effort has been expended on the Project, Higher Images will retain a pro-rata share reflecting the level of effort already undertaken.
CESSATION OF OBLIGATIONS- Upon completion of the Project, Higher Images shall have no further obligation to Client. Completion occurs when the Business/Fan Page has been created using the information supplied by Client, and Higher Images has supplied Client with the URL of the new Page and any relevant user IDs and passwords.
CLIENT’S WARRANTY- Client warrants that Client is the owner of the rights in the information and materials supplied for his/her/its Business/Fan Page/social media profiles and that they do not infringe the copyright, trademark, patent, statutory, common law or other property rights of any third party, that they do not contain any defamatory or harmful material or any factual inaccuracies and that Client has the full power to convey the rights granted in this Agreh3ent.
AUTHORITY TO ENTER INTO AGREEMENT- Client acknowledges and represents that Client is authorized and has full authority to enter into this Agreh3ent.
PAYMENT AUTHORIZATION- Return of a completed Proposal form, including signature by Client or an authorized representative of Client, to Higher Images shall engage Higher Images, Inc. (“Higher Images”) to deliver the services set forth in the Proposal. Client agrees to the above pricing and the terms and conditions herein and also located on Higher Images website, www.higherimages.com. Pricing is good for 15 days from the date of this Proposal. All orders are subject to approval and acceptance by Higher Images. Client further authorizes Higher Images to charge Client’s credit card account for the fees stated in the Proposal. If Client is a corporation, partnership or other legal entity (“Company”), the person signing above warrants that he or she has the authority to enter into this agreement on behalf of the Company. Cancellation and Termination: Cancellation of services requires a 30 day notice, submitted to admin, in writing and signed by an authorized representative of Client. This allows Higher Images the time necessary to process changes to billing and services as well as cancel any outside directory subscription services, if applicable, etc. Details of the services referenced above will be mailed to Client, upon request, after Higher Images receives this approved proposal. Profiles/fan pages/social media profiles and management will not be started without payment in full.
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Email Terms and Conditions
Higher Images Inc. will make every effort to keep its email service operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. Higher Images Inc. shall not be held liable for any of the consequences of such interruptions and shall not be considered a breach of this agreement.
Higher Images email service and network including, without limitation, email addresses, is owned by Higher Images Inc. and Higher Images Inc. establishes practices and limits concerning your email account, which practices and limits may be changed from time to time. Limits may include, without limitation, the period of time your email will be retained; the number, size and type of email messages and attachments you may send and receive; and the amount of space allocated to your email storage. email in inactive or terminated accounts may be deleted in accordance with Higher Images Inc.’s policies. You agree to use Higher Images Inc. email services only to send and receive personal messages. Higher Images Inc.
prohibits unsolicited email
to be sent or received through the Services, and uses a variety of techniques to eliminate or minimize email or attachments that Higher Images Inc. believes are unsolicited, inappropriate or harmful. In doing so, Higher Images Inc. may block or delete email or attachments sent by you or to you, even though such email or attachments may not be unsolicited, inappropriate or harmful. You understand that unless otherwise specified in your service level or plan terms, Higher Images Inc. does not utilize anti-virus software or services to scan for viruses. If your service level or plan terms do include anti-virus software or services, you understand that that not all viruses can be detected and/or cleaned. You are responsible for any damages caused by your decision to download any email or attachments.
You agree that Higher Images Inc. is not responsible for any email or attachments that are blocked or deleted for any reason and that you have no right, and Higher Images Inc. has no obligation, to retrieve or access any such deleted or blocked email or attachments. You agree that Higher Images Inc. is not responsible for any email or attachments that it fails to block or delete, even if such email or attachments contain viruses or are otherwise harmful to your computer.
Without limiting the generality of Higher Images Inc.’s rights as set forth in this Agreement, Higher Images Inc. reserves the right to change your email address and associated member ID if, in Higher Images Inc.’s sole discretion, it is inappropriate or infringes on the rights of a third party.
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Forms / Form Email Terms and Conditions
Email Form Delivery. When someone submits your forms, by default you’ll receive the results as an email notification. We go to great lengths to ensure successful delivery of emails. WE DO NOT GUARANTEE SUCCESSFUL DELIVERY OF YOUR EMAIL NOTIFICATIONS. We recommend checking your website daily to make sure you did not miss any form submission notifications.
Form Availability. Higher Images makes no warranty that forms provided by your website will be available 100% of the time and will be 100% error free.
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Applications and E-Commerce
Database, Application and E-Commerce Development Terms & Conditions: Higher Images Inc. cannot take responsibility for any losses incurred by the use of any software created for the client. Whilst every care has been taken to ensure products are problem free and accurate, the ultimate responsibility lies with the client in ensuring that all software is functioning correctly before use.
Your Store (Shopping Cart) & Content Control
Control of Your Store (Shopping Cart).
You will be solely responsible for the development, operation and maintenance of Your Store, including the operation of Your Store, accepting, processing and filling customer orders generated through Your Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Store. You agree that Higher Images Inc. has no obligation to back-up any data related to Your Store’s operations and you should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.
Control of your Store’s (Shopping Carts) Content.
You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on Your Store, regardless of whether Higher Images Inc. provides any design or customization Services to You under this Agreh3ent, including all descriptions of the products and services You offer to customers of Your Store and user-generated content on and related to Your Store. As a conduit, Higher Images Inc will give You complete discretion over Your content provided it is compatible and inter operable with the Software and Services provided by Higher Images Inc. under this Agreh3ent. You retain all rights, title and interest in and to all intellectual property rights embodied in Your content, exclusive of any content provided by Higher Images Inc. Notwithstanding anything contained in the foregoing, if You breach any of the covenants in this section of this Agreh3ent, Higher Images Inc. is entitled to suspend or terminate Your Store and/or any access to information or data related to Your account and the Software in accordance with this Section of this Agreh3ent.
Passive Conduit.
You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services or content, Higher Images Inc and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the Store. Higher Images Inc has no obligation to You or any third party, and undertakes no responsibility, to review Your Store, the products or services listed therein or any other content, including but not limited to user-generated content, published and/or distributed on Your Store to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if Higher Images Inc. believes in its sole discretion (as applicable) that Your Store or any products, services, content or other materials in the Store or on Higher Images Inc. Servers may create liability for Website Pros, You agree that Higher Images Inc. may take any actions with respect to the content or materials or Your Store that Higher Images Inc. believes are prudent or necessary to minimize or eliminate Higher Images’s Inc. potential liability. Higher Images Inc. shall, as applicable, be the sole judge of what content or materials may create liability for Higher Images Inc.
Any scripts, CGI applications or software (unless specifically agreed) written by Higher Images Inc. remain the copyright of Higher Images Inc. and may only be commercially reproduced or resold with the permission of Higher Images Inc..
Where applications or sites are developed on servers not recommended by Higher Images Inc., the client is expected to provide or seek any information, additional software, support or co-operation pertaining to the server required in order for the application to be correctly developed. Where large applications are to be developed, it is the client’s responsibility to provide a suitable testing environment which is identical to the final production environment.
The client is expected to test fully any application or programming relating to a site developed by Higher Images Inc. before being made generally available for use. Where “bugs”, errors or other issues are found after the site is live, Higher Images Inc. will endeavor (but is not obliged to) to correct these issues to meet the standards of function outlined in the brief
Compatibility
Higher Images Inc. will endeavor to ensure that any developed/designed site or application will function correctly on the server it is initially installed in and that it will function correctly when viewed with the web browsing software Microsoft Internet Explorer Version 6 and to an acceptable level with Mozilla browsers. Higher Images Inc. can offer no guarantees of correct function with all browser software.
Higher Images Inc. implies no guarantees as to the availability or interruption of this service. Higher Images Inc. cannot accept liability for losses caused by the unavailability, malfunction or interruption of this service, or for loss of turnover, sales, revenue, profits or indirect, consequential or special loss.
Higher Images Inc. reserve the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial, and also to terminate the free hosting service should the necessity arise.
Payment of Accounts
A deposit is required from any new client before any work is carried out. It is the Higher Images Inc. policy that any outstanding accounts for work carried out by Higher Images Inc. or its affiliates are required to be paid in full, no later than 30 days from the date of the invoice unless by prior arrangement with Higher Images Inc..
Once a deposit is paid and work completed you are obliged to pay the balance of payment in full. We will contact clients via email and telephone to remind them of such payments if they are not received when due.
If accounts are not settled or Higher Images Inc. have not been contacted regarding the delay, access to the related website may be denied and web pages removed, we will then pass such cases to the Small Claims Court to pursue payment, non payment can result in county court judgments (ccj’s) being added to the clients credit rating.
Following consistent non payment of an invoice our Solicitors will contact the client in question, with a view to taking the matter further and if need be to seek payment through legal procedures, and if necessary court summons.
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Warranties and Responsibilities
You are responsible for providing and maintaining all personal computer and communications equipment and Internet access accounts necessary to gain access to this website.
Your Obligations
You are responsible for providing and maintaining all personal computer and communications equipment and Internet access accounts necessary to gain access to this website.
In consideration of your use of the website, you agree to provide true, accurate, current and complete information about yourself.
You agree to use the website in a manner consistent with any and all applicable rules and regulations. You agree not to upload or transmit through the website any computer viruses, Trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer.
You agree to indemnify, release and hold us harmless as well as our officers, directors, agents, representatives and employees from any claim, liability, loss, expense or demand, including legal fees, related to your violation of these Terms of Use or your access or use of this website (including any information, materials, products or services available through this website).
Cancellations of Domain Hosting, Websites and email
Cancellation and Termination: Cancellation of services requires a 30 day notice, submitted to admin, in writing and signed by an authorized representative of Client. This allows Higher Images the time necessary to process changes to billing and services as well as cancel any outside directory subscription services, if applicable, etc.
Exclusion of Liability
To the fullest extent permitted by applicable laws we, on behalf of our employees, agents, suppliers, and contractors exclude liability for any losses and expenses of whatever nature and howsoever arising including, without limitation, any direct, indirect, special, punitive, or consequential damages, loss of use, loss of data, loss caused by a virus, loss of income or profit, loss of or damage to property, claims of third parties, or other losses of any kind or character, even if we have been advised of the possibility of such damages or losses, arising out of or in connection with the use of this website or any website with which it is linked. You assume total responsibility for establishing such procedures for data back up and virus checking as you consider necessary.
NO WARRANTIES
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS website OR ITS CONTENTS, WHICH ARE PROVIDED FOR USE “AS IS.” WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-Infringement, MERCHANT ABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THIS website AND ANY website WITH WHICH IT IS LINKED. WE DO NOT WARRANT THAT THIS WEBSITE, ITS SERVERS OR E-MAIL SENT FROM US WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES). WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE INFORMATION ACCESSIBLE VIA THIS website, OR ANY website WITH WHICH IT IS LINKED, IS ACCURATE, COMPLETE, OR CURRENT. YOU ACCEPT THAT OUR SHAREHOLDERS, OWNERS, OFFICERS, DIRECTORS, employees AND OTHER REPRESENTATIVES SHALL HAVE THE BENEFIT OF THIS CLAUSE.
The information and all other materials on this website are provided for general information purposes only and do not constitute professional advice. It is your responsibility to evaluate (or take professional advice on) the accuracy and completeness of all information, statements, opinions and other material on this website or any website with which it is linked.
Your statutory rights as a consumer, if any, are not affected by these provisions, and we do not seek to exclude or limit liability for fraudulent misrepresentation.
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Domain Registration Terms
Higher Images Inc partners with 1&1 Internet Inc in registering your domain therefore you are subject to the tems and conditions of 1&1 Internet.
In registering a domain name through Higher Images Inc., you agree to the following registration terms:
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Rocket Websitez
We do not own nor do We claim ownership of the content submitted to be included in and/or displayed on Your responsive website, mobile website or included/displayed in any other Service (as between you and us, “Your Content”). Your Content includes, but is not limited to: information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials included on any site you host via the Service. You are responsible for all of Your Content that is uploaded, posted, transmitted or otherwise made available via Our Services. We do not control Your Content or any Content You post via Our Services and You are responsible for any such Content that may be lost or unrecoverable through use of the Services. You are responsible for archiving and backing up Your Content regularly and frequently.
Higher Images’ Services allow You to import or link certain Content hosted on third-party websites into the Services. This third-party Content isn’t owned by Higher Images, and thus if it is no longer available or accessible to a user, then those portions of Your creation that reference such third-party Content will not work.
The Services provide You with the ability to embed images, animations, videos, audio, fonts, and other Content owned or provided by You or other third parties into the Services. The use of such third party Content shall be subject to the compliance with the provisions of these Terms and if applicable, the terms of use and/or end user license agreement provided by the third party owning or providing the third-party Content.
Higher Images does not warrant that any Content embedded in a website, either generated via automatic import, or placed manually by You, is licensed for use in Your jurisdiction. You are responsible for ensuring You have the appropriate licenses, usage rights or meet the requirements for Fair Use, and/or other laws and rights in Your jurisdiction, that may be required for using any Content.
Through Our Services, We may provide certain Content that is subject to proprietary rights of third parties. Higher Images shall have the right, at any time, at is sole and exclusive discretion to remove such Third-Party Content from the Services and/or disable access to Third-Party Content.
The following restrictions apply to all images made available to You via the Service.
You shall not use any image:
· except solely as incorporated into your responsive website, mobile website, Web Personalization created using the Service.
· together with pornographic, defamatory, or unlawful content or in such a manner that it infringes upon any third party’s trademark or intellectual property rights.
· portraying any person depicted therein (a “Model”) in a way that a reasonable person would find offensive, including but not limited to depicting a Model: a) in connection with pornography, “adult videos”, adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco products; c) as endorsing a political party, candidate, elected official, or opinion; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities.
· as a trademark, service mark, or logo.
Additional terms related to usage and licensing of images can be found here.
By using the Services, You may be exposed, and hereby assume all associated risks of being exposed, to Content that You may find offensive, indecent, harmful, inaccurate, deceptive or objectionable. Under no circumstances will We be liable for Your Content or the Content of any third party, including, but not limited to, for any errors or omissions in Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that We do not pre-screen Content, but that We shall have the right (but not the obligation) to refuse, move or delete any Content that is available via the Service. We shall also have the right to remove any Content that violates these Terms or is otherwise objectionable in Our sole discretion. You bear all risks associated with the use of any Content. You acknowledge and agree that We may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third parties; or (d) protect Our rights, property, or personal safety and those of Our users and the public.
HIGHER IMAGES SHALL HAVE THE RIGHT TO DISABLE THE ACCESS TO ANY CONTENT AND/OR DELETE IT AT ITS SOLE AND EXCLUSIVE DISCRETION, WITH NO LIABILITY TO HIGHER IMAGES, AND YOU SHALL NOT BE ENTITLED TO ANY REIMBURSEMENT OF ANY AMOUNT PAID BY YOU.
DISCLAIMERS OF ALL WARRANTIES
HIGHER IMAGES’ CONTENT, THE SITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT.
WITHOUT LIMITING THE ABOVE, (I) WE MAKE NO WARRANTY THAT THE SITE, THE SERVICES OR THE CONTENT WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, ACCURATE, CORRECT, COMPLETE OR AVAILABILE; (II) WE DO NOT ENDORSE OR APPROVE ANY CONTENT PROVIDED BY ANY THIRD-PARTY OR BY YOU AND DISCLAIM ALL LIABLITY WHATSOEVER THERETO; AND (III) WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THIS SITE, THE SERVICES OR THE CONTENT IN TERMS OF ITS CORRECTNESS, COMPLETENESS, RESULTS, AVAILABILITY, ACCURACY, RELIABILITY OR OTHERWISE.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY (I) USE OR THE INABILITY (FOR ANY REASON) TO USE ANY PART OF THIS SITE OR THE SERVICES (INCLUDING WITHOUT LIMITATION THE USE OF ANY CONTENT, INACCURACIES OR ERRORS OF INFORMATION AS A RESULT OF ACCESSING THIS SITE OR THE SERVICES), (II) ACTION OR INACTION IN CONNECTION WITH THIS AGREEMENT OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (III) STATEMENTS OR CONDUCT OF YOU OR ANY THIRD PARTY ON THIS SITE OR YOUR SITE OR MOBILE WEBSITE, INCLUDING WITHOUT LIMITATION ANY SUBMISSIONS THEREON; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
All of the above limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between Us and You. You agree that any claim or cause of action arising out of or in connection with the Site, the Services, the Content or the Agreement must be filed within thirty (30) days after such claim or cause of action arose or be forever barred.
In the event this limitation of liability shall be for any reason held unenforceable or inapplicable, You agree that Our aggregate liability shall not exceed the amount paid by You to Us pursuant to this Agreement.
INDEMNIFICATION
YOU RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES, FROM ALL CLAIMS, LIABILITIES, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED) RELATED TO IN ANY WAY TO: (I) YOUR USE OF, ACCESS TO OR RELIANCE ON THIS SITE, THE SERVICES OR THE CONTENT, (II) YOUR CONTENT, OR (III) YOUR VIOLATION OF ANY OF THE TERMS OF THIS AGREEMENT OR ANY APPLICABLE LAWS OR REGULATIONS.
We will provide You with written notice of such claim. You will not enter into any settlement or compromise of any such claim without Our prior written consent. We may assume the exclusive defense and control of any matter subject to indemnification by You. In all events, You shall cooperate fully in the defense of any claim.
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Proposals Now
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General. Welcome to proposalnow.com, a web site and/or online proposal system owned and operated by Higher Images, Inc. and distributed by Higher Images, Inc. and its affiliates. As part of our service, Higher Images, Inc. agrees to provide you with a means for generating proposals subject to the terms of this Agreh3ent (“Proposal Services”). Use of this site to generate a proposal signifies your agreement to these Terms of Service.
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Rights. This site and the linked to site are owned and operated by Higher Images, Inc. and contain material which is derived in whole or in part from Higher Images, Inc. and is protected by international and U.S. copyright, trademark, patent and other intellectual property laws. Your only rights are those specified herein. You may not reverse engineer, modify, copy, reproduce, republish, upload, post, transmit or distribute in any way any material from this site including code and software. You may print any generated proposal or material from this site solely for your own use and distribution, provided you keep intact all intellectual property notices and other proprietary notices.
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Service Limitations. In providing the Proposal Services, Higher Images, Inc. and our web site act only as a means to generate proposals by organizing data for presentation to and review by potential buyers who may or may not accept your proposal. Your proposal may or may not be legally construed as a contractual offer. Higher Images, Inc. has no role in any transaction between you and any potential buyer. Higher Images, Inc. urges you to obtain independent business and legal support as you may require to effectively enter into a binding transaction.
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Restrictions. Higher Images, Inc. does not control the messages, information or files you use for your Proposals. It is a condition of your use of the Proposal Services and this Web Site that your proposal data does not include any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law. Furthermore, you shall not restrict or inhibit any other user or competitor from using and enjoying this web site and the Proposal Services.
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Limitation of Liability. Under no circumstances, including, but not limited to negligence, shall Higher Images, Inc., its subsidiary and parent companies or affiliates be liable for any direct, indirect, incidental, special or consequential damages that result from the use of, or the inability to use Higher Images, Inc. materials. You specifically acknowledge and agree that Higher Images, Inc. is not liable for any defamatory, offensive or illegal conduct of any user. If you are dissatisfied with any material, or with, any of Higher Images, Inc. terms and conditions, your sole and exclusive remedy is to discontinue using the Higher Images, Inc. web site. Your use of this site also signifies your release of Higher Images, Inc. and its affiliates from any damages that you incur, and agree not to assert any claims against them, arising from your use of these Proposal Services.
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Disclaimer. The materials in this site are provided “as is” and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, Higher Images, Inc. disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchant ability and fitness for a particular purpose. Higher Images, Inc. does not warrant that any generated proposal will be error-free or the functions contained in the Proposal Services will be uninterrupted or error-free, that defects will be corrected, or that this site, or the server that makes it available, are free of viruses or other harmful components. Higher Images, Inc. does not warrant or make any representations regarding the use or the results of the use of the materials in this site or in third-party sites in terms of their correctness, accuracy, timeliness, reliability or otherwise.
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Confidentiality. Higher Images, Inc. recognizes that you may have occasion to send and have processed information that is considered by you to be confidential or proprietary, including know-how, specifications, drawings, cost or pricing data, customer or vendor lists, bills, ideas, and /or any other written or tangible material referring to the same (Confidential Information). All information used to generate a proposal is not reviewed by Higher Images, Inc., rather it is automatically processed and organized by our server-based software. Such processing is done securely. Should any Confidential Information require access and/or review by Higher Images, Inc. as a result of any technical support or any other reason both during the terms of the Proposal Services and thereafter, Higher Images, Inc. agrees to (1) maintain in confidence such Confidential Information; (2) use all reasonable and prudent precautions to ensure that all such Confidential Information is properly protected and kept from disclosure to unauthorized persons; and (3) refrain from directly or indirectly utilizing such Confidential Information in its own business or disclosing such Confidential Information to any third party unless such Confidential Information is not deemed to be confidential because it is in the public domain.
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Copyrights and Trademarks. You represent to Higher Images, Inc. and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Higher Images, Inc. for inclusion in your generated proposal are owned by you, or that you have permission from the rightful owner to use each of these elements and shall indemnify, hold harmless, protect, and defend Higher Images, Inc. and is subcontractors from any loss, cost, liability, expense, or damage, including, any claim or suit, threatened or actual attorneys’ fees, costs, and expenses, arising from the use of such elements furnished by you.
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Cancellation and Termination: Cancellation of services requires a 30 day notice, submitted to admin, in writing and signed by an authorized representative of Client. This allows Higher Images the time necessary to process changes to billing and services as well as cancel any outside directory subscription services, if applicable, etc.
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Entire Agreh3ent; Amendments. This Terms of Service Agreh3ent and any agreed upon fee constitute the entire agreement between Higher Images, Inc. and you with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral. Higher Images, Inc. may amend or modify this Terms of Service Agreh3ent or impose new conditions at any time without prior notice. Such amendments and modifications shall be effective immediately upon notice thereof which may be given by means including, but not limited to, posting on the Web Site. Any use of the Proposal Services by you after such notice shall be deemed to constitute acceptance by you of such amendments, modifications or new conditions.
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Governing Law. This agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to any principles or conflicts of law.
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Severability. If any provision of this agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
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Termination of Products or Services
Cancellation and Termination:
Cancellation of services requires a 30 day notice, submitted to admin, in writing and signed by an authorized representative of Client. This allows Higher Images the time necessary to process changes to billing and services as well as cancel any outside directory subscription services, if applicable, etc.
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Digital HI Apps
Digital HI Apps reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, are subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at:
www.higherimages.com
.
Violation of any of the terms below will result in the termination of your Account. While Digital HI Apps prohibits such conduct and Content on the Service, you understand and agree that Digital HI Apps cannot be responsible for the Content posted on the Service and you nonetheless may be exposed to such materials. You agree to use the Service at your own risk.
Higher Images, Inc. requires the cooperation of clients for input and feedback for the website build-out process. In the event that Higher Images cannot get in touch with a client, or a client continuously fails to communicate with Higher Images by failing to respond to requests, inquiries, emails, and/or phone calls in regard to the projects, Higher Images reserves the right to suspend a project. If a project is suspended and client wishes to re-instate the project, an activation fee is required to make it active again.
By using the Digital HI Apps (“Service”), all services of Digital HI Apps, Inc. (“Digital HI Apps”), you are agreeing to be bound by the following terms and conditions (“Terms of Service”).
Account Terms
You must be 13 years or older to use this Service.
You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process.
You are responsible for maintaining the security of your account and password. Digital HI Apps cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
You are responsible for all Content posted and activity that occurs under your account (even when Content is posted by others who have access to your account).
You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction
(including but not limited to copyright laws).
Payments and Refund Terms
A valid credit card is required.
There will be no refunds or credits for setup fees, partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
Digital HI Apps will use commercially reasonable efforts to have the application approved by the appropriate mobile platform provider. Although there is a high likelihood of approval, we do not and cannot guarantee acceptance. If your application is denied by the appropriate mobile platform provider you may cancel your account, however there are no refunds under any circumstances.
Cancellation and Termination
Cancellation of services requires a 30 day notice, submitted to admin, in writing and signed by an authorized representative of Client. This allows Higher Images the time necessary to process changes to billing and services as well as cancel any outside directory subscription services, if applicable, etc.
Modifications to the Service and Prices
Digital HI Apps reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
Digital HI Apps shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
From time to time, Digital HI Apps may issue an update to the Digital HI Apps application which may add, modify, and/or remove features from the application. These updates may be pushed out automatically with little or no notice, although Digital HI Apps will do everything in its power to notify you in advance of an upcoming update, including details on what the update includes.
Copyright and Content Ownership
We claim no intellectual property rights over the material you provide to the Service. Your profile and materials uploaded remain yours. However, by using the Digital HI Apps application to create your mobile application, you agree to allow others to view and share your Content.
Digital HI Apps does not pre-screen Content, but Digital HI Apps and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.
The look and feel of the Service is copyright 2016 Digital HI Apps, Inc. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements without express written permission from Digital HI Apps.
Digital HI Apps may make certain software available to you through the Service. If you download or otherwise use the software from the Service, the software, including all files and images contained in or generated by the software, look and feel, HTML/CSS, visual design elements, and accompanying data (collectively, “Software”) are deemed to be licensed to you by Digital HI Apps, for your personal and noncommercial use only. Digital HI Apps does not transfer either the title or the intellectual property rights to the Software, and Digital HI Apps retains full and complete title to the Software as well as all intellectual property rights therein. You may not sell, redistribute, or reproduce the Software, nor may you de-compile, reverse-engineer, disassembly, or otherwise convert the Software to a human-perceivable form.
You grant Digital HI Apps a license to use the materials you post to the Services. By posting, downloading, displaying, performing, transmitting, or otherwise distributing user content to the Service, you are granting Digital HI Apps, its affiliates, officers, directors, employees, consultants, agents, and representatives a license to use user content in connection with the operation of Digital HI Apps, its affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat user content. You will not be compensated for any user content. By posting user content on the Service, you warrant and represent that you own the rights to the user content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute user content.
When accessing or using the Services, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of any party”s copyrights, trademarks, patents, trade secrets, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property, and you shall be solely responsible for any violations of any laws and for any infringements of any intellectual property rights caused by any content you provide, post, or transmit, or that is provided or transmitted using your user name or user ID. The burden of proving that any Content does not violate any laws or intellectual property rights rests solely with you.
All Digital HI Apps content included on its site, its Software, and through the Service is the property of Digital HI Apps and is protected by U.S. and international intellectual property laws. All Digital HI Apps content, Software, code, HTML/CSS, and visual design data is is copyright 2013 Digital HI Apps, Inc. All
General Conditions
Your use of the Service is at your sole risk. The service is provided on an “as is” and “as available” basis.
Technical support is available via email and . The technical support email address is
support@higherimages.com
or our 24/7/365 Support Ticket System at webmarketingconsole.com and logging into your account.
You authorize the Company to use, reuse, and to grant others the right to use and reuse, your Content, and any reproduction or simulation thereof, in any form of media or technology now known or hereafter developed, both during and after your use of the Services, for any purposes related to the Service.
You understand that Digital HI Apps uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, or any other Digital HI Apps service.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Digital HI Apps.
We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Digital HI Apps customer, employee, member, or officer will result in immediate account termination.
You understand that the technical processing and transmission of the Service, including your Content, may be transferred un-encrypted and involve
(a) transmissions over various networks; and
(b) changes to conform and adapt to technical requirements of connecting networks or devices.
You must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages.
You must not transmit any worms or viruses or any code of a destructive nature.
Digital HI Apps does not warrant that
(i) the service will meet your specific requirements,
(ii) the service will be uninterrupted, timely, secure, or error-free,
(iii) the results that may be obtained from the use of the service will be accurate or reliable,
(iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and
(v) any errors in the Service will be corrected.
You expressly understand and agree that Digital HI Apps shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Digital HI Apps has been advised of the possibility of such damages), resulting from:
(i) the use or the inability to use the service;
(ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service;
(iii) unauthorized access to or alteration of your transmissions or data;
(iv) statements or conduct of any third party on the service;
(v) or any other matter relating to the service.
The failure of Digital HI Apps to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and Digital HI Apps and govern your use of the Service, superseding any prior agreements between you and Digital HI Apps (including, but not limited to, any prior versions of the Terms of Service).
In no event shall Digital HI Apps liability to you exceed the amount actually paid to Digital HI Apps by you during the preceding 12 months.
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WEB TRACKER TERMS AND CONDITIONS
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT (“PLATFORM AGREEMENT”) CAREFULLY BEFORE ACCESSING THE PLATFORM (“PLATFORM”) OF, OR USING ANY OF THE SERVICES (“SERVICES”) OFFERED BY, WEB TRACKER HOLDINGS, INC. (“WE,” “US,” “OUR,” OR “WEB TRACKER”).
IF YOU HAVE SIGNED OUR MASTER SERVICES AGREEMENT (“MSA”), THE TERMS OF THAT AGREEMENT APPLY TO YOU. BY CLICKING “I ACCEPT”, YOU AGREE THAT YOU WILL COMPLY WITH THE TERMS AND CONDITIONS OF THE MSA AND WILL NOT ACCESS OUR PLATFORM TO USE ANY OF THE SERVICES FOR WHICH YOU HAVE NOT CONTRACTED. YOU ARE NOT AGREEING TO ANY OF THE TERMS SET FORTH BELOW.
IF YOU HAVE EXECUTED AN INSERTION ORDER WITH US OR IF YOU HAVE SUBMITTED AN ONLINE ORDER THAT IS ACCEPTED BY US, BUT, IN EITHER CASE, YOU ARE NOT PROVIDED ACCESS TO OR USE OF OUR PLATFORM ON A SELF-SERVICE BASIS (EACH, A “MANAGED ORDER”) OR HAVE EXECUTED A DATA LICENSE AGREEMENT (“DATA LICENSE”) WITH US, YOU ARE BEING PROVIDED ACCESS TO OUR PLATFORM ONLY FOR THE PURPOSE OF ACCESSING REPORTING APPLICABLE TO YOU. BY CLICKING “I ACCEPT”, YOU AGREE, AS PART OF YOUR MANAGED ORDER AND/OR DATA LICENSE WITH US: (A) TO ONLY ACCESS OUR PLATFORM TO ACCESS REPORTING APPLICABLE TO YOU, (B) TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 1, 4, 6 AND 7 OF THIS PLATFORM AGREEMENT, AND (C) THAT SUCH TERMS BECOME PART OF YOUR MANAGED ORDER AND/OR DATA LICENSE WITH US. IN THE EVENT OF AN EXPRESS CONFLICT BETWEEN YOUR MANAGED ORDER OR DATA LICENSE, ON THE ONE HAND, AND THIS PLATFORM AGREEMENT, ON THE OTHER HAND, YOUR MANAGED ORDER OR DATA LICENSE SHALL CONTROL.
IF YOU HAVE EXECUTED AN INSERTION ORDER WITH US OR IF YOU HAVE SUBMITTED AN ONLINE ORDER THAT IS ACCEPTED BY US (“ONLINE ORDER”), AND YOU ARE PROVIDED ACCESS TO AND USE OF OUR PLATFORM ON A SELF-SERVICE BASIS (EACH, A “SELF-SERVICE ORDER”), BY CLICKING “I ACCEPT”, YOU AGREE, AS PART OF YOUR SELF-SERVICE ORDER WITH US: (A) IN THE CASE OF SUCH EXECUTED INSERTION ORDER WITH US, TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 2, 4, 6 AND 7 OF THIS PLATFORM AGREEMENT AND, IN THE CASE OF SUCH ONLINE ORDER ACCEPTED BY US, TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 2, 4, 5, 6 AND 7 OF THIS PLATFORM AGREEMENT, AND (C) THAT SUCH TERMS BECOME PART OF YOUR SELF-SERVICE ORDER WITH US. IN THE EVENT OF AN EXPRESS CONFLICT BETWEEN YOUR SELF-SERVICE ORDER AND THIS PLATFORM AGREEMENT, YOUR SELF-SERVICE ORDER SHALL CONTROL.
IF YOU DO NOT HAVE A MANAGED ORDER, SELF-SERVICE ORDER OR DATA LICENSE WITH US, YOU HAVE BEEN GIVEN TEMPORARY ACCESS TO OUR PLATFORM SOLELY TO REVIEW THE FEATURES OF OUR PLATFORM (“TEMPORARY ACCESS”), BUT YOU ARE NOT AUTHORIZED TO UTILIZE ANY SERVICES PROVIDED BY THE PLATFORM (E.G., LOADING ADS, PROVIDING DATA OR INVENTORY). BY CLICKING “I ACCEPT,” YOU AGREE (A) TO ONLY ACCESS OUR PLATFORM TO REVIEW THE FEATURES OF OUR PLATFORM, (B) NOT TO ACCESS OR USE OR ATTEMPT TO ACCESS OR USE ANY OF OUR SERVICES, AND (C) TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 3, 4 AND 5 OF THIS PLATFORM AGREEMENT.
IF YOU REPRESENT A COMPANY AND CLICK “I ACCEPT,” YOU ARE BINDING SUCH COMPANY TO THE TERMS OF THIS PLATFORM AGREEMENT APPLICABLE TO YOU. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS PLATFORM AGREEMENT APPLICABLE TO YOU, CLICK “CANCEL” AND DO NOT ACCESS OUR PLATFORM.
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SECTION 1.
THIS SECTION 1 APPLIES TO YOU IF YOU HAVE A MANAGED ORDER OR DATA LICENSE WITH WEB TRACKER.
A. License. We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable right to access and use Our Platform SOLELY for accessing reporting applicable to you. If We provide you with an application programming interface (“API”) to access Our Platform, We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable license to use the API for the sole purpose of accessing or using Our Platform to access reporting applicable to you. You shall not upload, send or store ANY material through Our Platform.
SECTION 2.
THIS SECTION 2 APPLIES TO YOU IF YOU HAVE A SELF-SERVICE ORDER WITH WEB TRACKER.
A. License. We hereby grant You a limited, non-exclusive, non-assignable, non-transferable and revocable right to access and use Our Platform SOLELY for bidding on and uploading and serving online digital advertising (“Ads”), uploading your data to target your Ads (“Your Data”) and accessing reporting related thereto. If We provide you with an application programming interface (“API”) to access Our Platform, We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable license to use the API for the sole purpose of accessing or using Our Platform to exercise your rights in the preceding sentence. You shall not: (i) send or store infringing, or otherwise unlawful or tortious material, including material violative of third party intellectual property or privacy rights; or (ii) send or store material containing software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programming routines (collectively, “Harmful Code”) to, on or through Our Platform.
SECTION 3.
SECTION 3 APPLIES TO YOU IF YOU HAVE TEMPORARY ACCESS.
A. License. We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable right to access and use Our Platform SOLELY for the purpose of reviewing the features of our Platform. If We provide you with an application programming interface (“API”) to access Our Platform, We hereby grant you a limited, non-exclusive, non-assignable, non-transferable and revocable license to use the API for the sole purpose of accessing or using Our Platform to review the features of Our Platform. You shall not upload, send or store ANY material through Our Platform.
SECTION 4.
THIS SECTION 4 APPLIES TO YOU IF YOU HAVE ACCESS TO OUR PLATFORM FOR ANY REASON.
A. Restrictions. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party Our Platform, services, API, and/or the data contained therein, including without limitation, underlying technology, trade secrets, content or information (collectively, “Our Technology”) (or any portion thereof) in any way; (ii) modify, reproduce, adapt, translate Our Technology (or any portion thereof) or make derivative works based upon Our Technology (or any portion thereof), (iii) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from Our Technology (or any portion thereof), (iv) violate any applicable local, state, national and foreign laws, treaties and regulations in connection with your access and use of Our Technology (or any portion thereof) nor use Our Technology for any purpose or in any manner that is unlawful or prohibited by this Platform Agreement, (v) interfere with or disrupt the integrity or performance of the Our Technology (or any portion thereof), including without limitation, the Services, the Platform, the API or the data contained therein, (vi) access Our Platform or APIs by any means other than through the interface that is provided by Us for use in accessing the Platform or APIs, (vii) attempt to gain unauthorized access to Our Technology (or any portion thereof) or its related systems or networks or misrepresent its identity, use or attempt to use any unauthorized identification (including without limitation use of any third party logo, name or other identifier), (viii) use Our Technology (or any portion thereof) for any purpose or in any manner that is unlawful or prohibited by this Platform Agreement, (ix) publicly disseminate information or analysis regarding the performance of the Our Technology, including without limitation, the Platform or APIs, or (x) permit or authorize any party to do any of the foregoing.
B. Account. You have been provided with a password protected account to access reporting applicable to you on the Platform. You are responsible for all activity occurring under your account. You shall: (i) notify Us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to Us immediately and use reasonable efforts to stop immediately any copying or distribution of Our Technology (or any portion thereof) or of any data or content contained in Our Platform through your account that is known or suspected by you.
C. Ownership. You acknowledge that you are obtaining only a limited right to access and use Our Technology as set forth in Sections 1-3, as applicable, and that We or Our suppliers or licensors retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to Our Technology, including the right to continually evolve Our Technology (or any portion thereof). We may freely use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to Our Technology (or any portion thereof). Our name, Our logo, and the product names associated with Our Technology (or any portion thereof) are trademarks of Ours or third parties, and no right or license is granted to use them. Our Technology shall be deemed to be Our Confidential Information.
D. WARRANTY DISCLAIMER. WE AND OUR LICENSORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED. THE SERVICES ARE MADE AVAILABLE “AS IS” AND “AS AVAILABLE” AND WE DO NOT REPRESENT OR WARRANT THAT (I) OUR TECHNOLOGY (OR ANY PORTION THEREOF) OR THE USE THEREOF WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) OUR TECHNOLOGY WILL MEET YOU’S REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED DATA WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; OR (IV) OUR TECHNOLOGY OR THE INFRASTRUCTURE THAT MAKES OUR TECNOLOGY AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE AND OUR LICENSORS HEREBY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OF OUR CONTROL.
E. INDEMNIFICATION. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US HARMLESS FOR ANY THIRD PARTY CLAIMS OR DAMAGES ARISING OUT OF YOUR BREACH OF THIS PLATFORM AGREEMENT.
F. Rejection; Termination. We reserve the right for any reason to (a) reject your Ads, and/or (b) terminate or suspend your access (or the access of specific personnel) to Our Platform.
SECTION 5.
THIS SECTION 5 APPLIES TO YOU IF YOU HAVE (A) AN ONLINE ORDER, WITH EITHER MANAGED OR SELF-SERVICE ACCESS TO OUR PLATFORM, OR (B) IF YOU HAVE TEMPORARY ACCESS.
A. Confidentiality.
Definition. “Confidential Information” means: (i) Our Technology; and (ii) any of Our business or technical information, including but not limited to any information relating to Our product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how.
Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by you; (ii) is known to you at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by you without use of Our Confidential Information; (iv) you rightfully obtain from a third party without restriction on use or disclosure; or (v) is disclosed with Our prior written approval.
Use and Disclosure Restrictions. You will not use Our Confidential Information except as permitted herein and will not disclose Our Confidential Information to any third party.
B. LIMITATION OF LIABILITY. IN NO EVENT SHALL WE BE LIABLE HEREUNDER FOR ANY LOSS OF USE, LOST OR INACURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. OUR MAXIMUM LIABILITY HEREUNDER SHALL BE LIMITED TO (A IN THE CASE OF AN ONLINE ORDER, $100, AND (B) IN THE CASE OF NO ORDER NOR EXECUTED AGREEMENT, $0.
C. INDEMNIFICATION. You shall defend, indemnify and hold WEBTRACKER, its licensors and WEBTRACKER’s subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) (“Claims”) arising out of or in connection with any Claim arising from your breach of this Platform Agreement. In addition, if you have an Online Order, you shall provide the foregoing for any Claims arising out of or in connection with any Claim arising from the products, goods and services promoted in Your Ad.
D. LICENSE TO ADS; PAYMENT; PRIVACY POLICY. This Section applies only to Online Orders and not to Temporary Access. You hereby grant to Us and our licensees a royalty-free, worldwide license to use, reproduce, market, display, publish, perform, distribute and transmit the Ads as part of operating the Platform and fulfilling the Online Order. Ads need to be provided in the format set forth on Our site. We will not modify the content or appearance of any Ad, provided that should We determine that it is necessary to modify the size or attributes associated with the underlying technology to deliver an Ad or fulfill an Online Order using the Platform, then We may make such modifications. You reserve the right to direct further changes or modifications to an Ad or Online Order following any changes made by Us. You shall ensure that any content in Your Ads and on any page linked to from any of Your Ads: (i) is not misleading, libelous, obscene, invasive of others’ privacy, or hateful (racially or otherwise), (ii) does not imply, infer, state or publish that content or materials promoted in the Ad are provided, endorsed, sourced or otherwise approved by any third party without such third party’s express permission to do so, (iii) does not contain Harmful Code or otherwise operate in a manner that could reasonably be expected to damage Our Technology, (iv) does not infringe the intellectual property or proprietary rights of any third party, and (v) does not violate Applicable Laws. You will be obligated to pay media costs as well as data fees, platform fees and other fees set forth in Our standard rate card only for Ads actually served and will do so within thirty (30) days after receipt of invoice. Our reporting with respect to any such fees, including impression counts and record of the price per impression, will be determinative. You will maintain and abide by a legally sufficient privacy policy that is consistent with Applicable Laws.
E. Termination. WE RESERVE THE RIGHT TO TERMINATE THIS PLATFORM AGREEMENT OR YOUR ACCESS (OR THE ACCESS OF SPECIFIC PERSONNEL) TO THE PLATFORM FOR ANY REASON.
F. General. This is the entire agreement between you and Us on the subject matter herein. We may modify this Platform Agreement at any time and your continued access of the Platform using your account will signify your acceptance of such modifications. This Platform Agreement will be governed and interpreted in accordance with the laws of the State of Texas without reference to conflicts of laws principles. You agree that any dispute under this Agreement shall be brought in the federal or state courts located in Tarrant County, Texas and you agree to submit to the exclusive jurisdiction of the federal and state courts located in Tarrant County, Texas. No failure of WEBTRACKER to enforce any of its rights under this Platform Agreement will act as a waiver of such rights. Provisions of this Agreement held unenforceable under applicable law shall be excluded to the minimum extent required to conform to such law and the remainder of the Agreement will remain enforceable. We may assign this Agreement without your consent and use subcontractors in any manner. You may not assign this Agreement without Our written consent. You and We are independent contractors, and nothing in this Agreement shall be deemed to create a joint venture or partnership. You agree that during the term of this Agreement and for twelve months thereafter, you will not encourage or solicit any employee or consultant to leave the employ of WEBTRACKER; provided that, you shall not be prohibited from employing any such person who contacts you in response to a published general solicitation not specifically targeted at such person.
SECTION 6.
THIS SECTION 6 APPLIES TO YOU IF YOU ARE CONTRACTUALLY PERMITTED TO ACCESS AND USE OUR API TO ACCESS YOUR REPORTING.
You may allow your Third Party Reporting Provider to access, on Your behalf, Our API provided to You for the sole purpose of accessing the Services in order to access, use and report on Customer’s campaign data and such access and use of the API, the Platform and the Services shall be in accordance with the provisions of our Agreement and subject to the confidentiality provisions therein. All actions or omissions of such Third Party Reporting Provider shall be deemed to be Your actions or omissions. As used herein, “Third Party Reporting Provider” means a company engaged by You to provide reporting on advertising campaigns that has been prior approved by our CEO, CFO, CRO or CTO in writing (email to suffice). You shall be responsible for the actions and omissions of your Third Party Reporting Provider and shall defend, indemnify and hold harmless Us, Our licensors and each of Our or their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any acts or omissions of your Third Party Reporting Provider in accordance with the indemnification provisions of our Agreement.
SECTION 7.
THIS SECTION 7 APPLIES TO EVERYONE UTILIZING OUR PLATFORM OR SERVICES.
A. Privacy Shield. To the extent any personal data of EU residents is collected, transferred, shared or otherwise processed (“process” or “processing”) hereunder You agrees that: (a) if You are a recipient processor, You will: (i) act only on instructions from Us with respect to the processing of any personal data; (ii) provide appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and understand whether onward transfer is allowed; and (iii) taking into account the nature of the processing, assist Us in responding to individuals exercising their right to access their personal data; and (b) if You are a recipient controller of EU user data, You shall provide the same level of protection as is available under the EU-US Privacy Shield and will make available an equivalent independent recourse mechanism as under Privacy Shield. We and You will comply with all Rules applicable to the processing of personal data. As used herein, “Rules” means all applicable privacy, electronic communications and data protection laws, rules, regulations, and regulatory guidelines, including but not limited to the EU General Data Protection Regulation (GDPR), as well as any applicable self-regulatory guidelines including but not limited to the EU-US Privacy Shield Principles, as each of the foregoing may be amended from time to time.
B. NAI. We are a member of the NAI. You shall comply the 2018 NAI Code of Conduct located at https://www.networkadvertising.org/sites/default/files/nai_code2018.pdf(specifically sections II.B.3 and II.B.4), as may be amended from time to time.
Last Revised July 31, 2018
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