- Terms and Conditions for Google Ads
Terms and Conditions for Google Ads
This is an agreement (this “Agreement”) between Digital Spotlight LLC, a California limited liability company (“we” or “us”), and the company or business named as the client (“you” or “your”) in the document to which these terms are attached. This Agreement is binding upon the parties’ successors in interest and assigns, whether such are inside or outside the United States of America.
The contents of this document, including “Remarketing Service Introduction” (Section 1), “Pricing Structure” (Section 2), “About Digital Spotlight” (Section 3), and “Terms and Conditions” (Section 4) form the agreement between us and you. To the extent the Terms and Conditions set forth in this Section 4 conflict with other sections of the Agreement, the contents of this Section 4 shall control in all respects.
If there is anything that we have discussed that is not in the attached document or these terms, you must inform us so we can make sure that the matter is included in writing in this document. Only those items stated in this document (as such may be updated from time to time) or in any written payment arrangements that may be agreed to subsequent to the date of this document will be a term of the agreement between us, and this Agreement will supersede any previous negotiations, representations and agreements between us and you, whether oral or written.
This Agreement operates from month to month, commencing on the date on which you sign the agreement. Search engine features and requirements change often without notice and we may need to update the terms of this Agreement to address these changes. Because this Agreement operates from month to month, we reserve the right to change the terms of this Agreement from month to month. We will notify you of any relevant updated or modified terms of this Agreement by posting them on our website or emailing them to you. Please contact us at any time to receive a copy of the then-current terms of this Agreement.
This Agreement is Copyright © 2022 Digital Spotlight LLC.
4.2 What we do.
4.2.1 Generally. We provide Google Ads management services with the objective of increasing the number of targeted, relevant hits on your website from Google. You acknowledge and agree that the only services we are providing under this Agreement are those explicitly set forth herein (including in Sections 1 through 3). If any additional services are requested, we may, in our sole discretion, agree to provide such additional services provided that such additional services may result in additional fees. Any additional services will require a new agreement to be entered into, pursuant to Section 4.15.13. Our services are limited to one country per account and one domain per account. Any additional countries or domains will be separately quoted and billed. With respect to the services we provide under this Agreement, we will do the following:
- We will deal with you honestly and openly.
- We will apply good industry practice in information security.
- We will respect your trade secrets (i.e. things that we get to know about your business that are commercially sensitive and not known to the public).
- We will respect the privacy of individuals in accordance with applicable privacy laws.
- We will avoid technical jargon and mumbo-jumbo. We strive to talk about what we can do, are doing and the results we achieve for you in a way that you can understand.
- We will work in your best interests and apply our expertise and extensive experience to improve your site’s search engine and click through results.
- Features and capabilities of our services will change over time depending upon search engine features and requirements. Often it is difficult to state categorically what is possible or what is best for your website. We apply our judgment and endeavor to deliver the best sustainable rankings that can be achieved for the budget that you allocate. Other providers of services may have different opinions.
- We will suggest what we think are the best keywords for your site based on our extensive experience, industry benchmarks and testing. Some audiences and keywords may not be available for targeting in Google. Some audiences and keywords may be available for targeting currently but may not be available in the future. We are not responsible for any changes in Google’s policies regarding audience or keyword targeting.
- We will apply a sensible choice and number of keywords to your site, again based upon extensive experience, industry benchmarks and testing. The number of keywords will vary according to the level of service you acquire from us. Significantly more keywords requires more ongoing maintenance work by us and may lead to us recommending that you subscribe to a higher level of service.
- We focus on optimizing the campaigns inside the Google Ads platform. We do not commit to either recommending or making any visible changes to the pages on your site we are targeting
- We rely upon what you tell us and upon you to ensure that what you tell us or instruct us to do is accurate and not misleading or deceptive or otherwise actionable in any way. If you know that anything that you’ve told us has become outdated or incorrect because things have changed, we rely on you to promptly tell us what has changed. We rely upon you to obtain all consents from your users and to give notice to your customers and other users about placing of cookies, beacons and other online identifiers, collection and use of personal information from individuals (whether using online identifiers or offline data) including use for advertising on Google, in full compliance with all laws that affect those activities.
- We manage your campaign based on information and directives provided by you. We rely upon responses provided in your answers to our questionnaire and other instructions to enable us to develop advertising copy and strategies which are, to the best of our knowledge based upon your instructions, compliant with Google’s Terms of Service, Google Ads policies and other Google requirements.
- If you buy our services for a term, we will periodically review changes in the Google Ads platform and other known factors that affect your results and we then seek to re-calibrate your search engine advertising campaign your site to maintain or improve your results.
- If you buy our services for a term and you tell us at any time that your site content and structure has changed, once you tell us we will (as soon as we reasonably can) review and adjust and update keywords and other Google Ads optimization features that are within our
- We will apply our extensive industry experience to endeavor to predict future changes in policies of search engines or other external developments that may affect your site’s results. However, it is impossible for us to predict actions that may be taken by search engines and by other sites that compete for ratings. Our predictions will be informed and sensible, but they may prove to be wrong.
- We will deploy appropriate staff to provide services to you using our global resources wherever located.
- We will rely upon you to provide us with continuing and uninterrupted access to your site and your search engine advertising account to provide our services and your prompt implementation of our recommended changes. If you don’t provide us with access, or your web development or marketing team does not promptly implement our changes, our charges are still payable, because we plan our resources in the expectation that you will provide us with continuing access and promptly implement our recommendations.
- We will rely upon you to design, develop and implement your website. Our task is to optimize your Google Ads campaigns, not to fix your site content or structure.
- We will maintain usernames and passwords that we set up for and behalf of you with Google Analytics and Google Ads and these usernames and passwords will be confidential to us and not provided to you at any time. We may at our choice provide shared access to you if you provide a Google account. We will set up Google Analytics and a Google Ads account on your behalf (if it is not set up already and if your site allows it). We will share this access upon your request. If you have already set up Google Analytics and/or Google Ads, you will provide (at least) shared access to us.
- We limit conversion tracking to a maximum of 3 conversion actions and we track conversions in Google Ads only via Google Tag Manager, and limit this to up to 3 hours maximum. Any additional conversion actions and any request to utilize or integrate third party conversion tracking applications, or any additional complications that require additional time, will result in additional fees being charged. Conversion tracking audits are limited to once per year, on the anniversary of sign up. Any additional audits will be result in an additional fee. Conversion tracking set ups are limited to once per year, starting with the date that we start managing the account. Any additional set ups will result in additional fees.
- We structure campaigns in a way that maximizes results. Although we are open to listening to your ideas, the final decision lies with us. You may change the campaign or offer a maximum of one time per month.
- We will target a maximum of 5 landing pages for all Google Ads impressions.
- We will review search terms reports and add negative keywords periodically, if applicable. Ads and keywords will be optimized only after gathering enough data to make an informed decision.
- Google shopping campaigns will be limited to a maximum of 4 campaigns: one for product, one for brand, one for high value in the market terms and one for a general catch-all. Any additional campaigns requested (including those for individual products and best sellers) will result in additional fees. No campaigns other than the four aforementioned campaigns are allowed.
- Smart shopping campaigns will be limited to one per country.
- You give us permission to represent you and contact Google to appeal/act on behalf of you. We will limit this to 1 hour per month to solve any outstanding issues. We will not be responsible for any actions that result from our representation, including if it results in a loss in revenue and/or ban of your account.
4.2.2. Third Party Brands and Trademarks. We rely on you to take particular care to ensure that we are not instructed to use brands, trademarks or other intellectual property (registered or not) that are not owned by or licensed to you in any way that does not comply with applicable law. We rely upon what you tell us. We also rely upon you to obtain all consents and approvals from owners of trademarks, trade names, other identifiers of products or services and other intellectual property that you inform us that we may use to promote and market your business and products and services offered by you, in full compliance with all laws that affect those activities. You hereby represent and warrant that any and all information and material provided to us by you shall not infringe upon or misappropriate any rights of a third party, including intellectual property rights.
4.3 Your responsibilities.
You are responsible for the following:
- Access to Website and Personnel. We will rely upon you to provide us with continuing and uninterrupted access to your site to provide our services and your prompt implementation of our recommended changes. If you don’t provide us with access, or your web development team does not promptly implement our changes, our charges are still payable, because we plan our resources in the expectation that you will provide us with continuing access and promptly implement our recommendations.
- Access to Google Accounts. If you have already set up Google Analytics, Google Ads and/or a Google tag manager account, you will provide (at least) shared access to us. If you do not have accounts or your accounts have not been fully set up, we will need to set up an account for you but you shall be solely responsible for the account and all related fees.
- Design and Implementation of Website. We will rely upon you to design, develop and implement your website. If we recommend changes to site content and structure, you should engage web designers and web developers to work with you on your site content and structure. You must have all Google Tag Manager tags installed on every page of your website. We may, in our sole discretion, decide to assist you in setting this up but we must be given full access to your website and related accounts. We may, in our discretion, charge an additional fee for this service.
- Images, Videos and Other Assets for Google Ads advertising. Providing images, videos, and other related assets to use in Google Ads advertising, as well as explicitly stating which landing pages you would like to drive traffic to. If you do not provide the necessary assets as well as explicit direction which landing pages to target, you agree to allow us to use our judgement to make these decisions for you.
- Decision-making Responsibility. You must take responsibility for your own If you tell us to take or not take an action that we do not agree with or recommend, and we do so at your instruction, you will be solely responsible for the results. Similarly, if you elect to change your website frequently or in ways that are not accepted industry practice or effectively communicated to us, we will not be responsible for any adverse effects.
- Accurate and Timely Feedback. You are responsible for accurately and timely disclosing to us in writing (a) any metrics we request, for example regarding leads and lead conversion, (b) if our reporting is inaccurate or does not reflect the results you are seeing on your end, (c) if you are unhappy with your results, (d) if you have received a lot of spam leads, (e) if you believe there have been fraudulent clicks on your ads and (f) any other issues with your results. You must communicate with us daily (and at a minimum, weekly) regarding these matters so we can collaborate with you to adjust our strategies and services as necessary. We shall not be responsible for correcting any issues that are not conveyed to us within one week of when they were realized or should have been realized by you. You will assign one person who will manage all feedback and interaction during your engagement of us, to ensure consistency and efficient communication and conveyance of all necessary information to us in a timely manner.
- Parameters for Optimization. You are responsible for conveying to us in writing what the parameters for performance and optimization are. If we are generating leads for you, we need a target Cost Per Lead, as a whole and by service if relevant, and parameters for a budget. If you operate an ecommerce website, we need a target Return on Advertising Spend, as a whole and by product if relevant.
- Payment of Fees to Platforms. You are responsible for conveying your budget to us in writing, whether fixed or not. If you provide us with an unlimited budget, whether dependent on certain results or not, we are entitled to rely on that directive and will not be responsible if you are later unhappy with the amount spent. If your budget is overspent, we are not liable for such overspent amount. We do our best to stay within budgets, but that is not always possible given variances in the way platforms charge fees, which are outside of our control. You are solely responsible to pay all amounts owed to any platforms, confirming such amounts are accurate and ensuring that the correct method of payment is being charged. If you ask, and we agree (which right we hold in our sole and absolute discretion) that we use your credit card information to make fee payments to any platforms on your behalf, you expressly agree that we are not liable for, and you waive all claims against us arising out of or relating to, any negligence or accidental payments or charges to the wrong account in connection with our payment of fees to platforms on your behalf.
- Updating of Payment Methods in the Google Ads Platform. If you ask us to update any payment method, we may do so in our sole discretion but we shall not be responsible for any mistakes in making such update.
- Reconciling of Payments From Google Ads. It is your responsibility to reconcile payments invoiced, charged and outstanding from your Google Ads accounts. We do not have access to your bank and/or credit card statements and any bookkeeping or accounting is beyond the scope of this agreement.
- Term Restrictions. You are responsible for letting us know in writing if there are any keywords or terms (trademarked or not) or brands that you do not want us to bid on. Absent such a directive from you, we will not be held responsible for bidding on any keywords, terms or brands that you may not approve of.
- Providing Accurate and Complete Information. You are responsible for providing us accurate and complete information. We are not responsible for any inaccuracies in the information you provide to us, including any inaccurate information available on your website.
- Installing Pixels and Tags. You are solely responsible for installing all pixels and tags onto your website as required for our services. If you would like us to install or modify anything on your website, we may agree to do so in our sole discretion. However, we shall not be responsible for any errors or inaccuracies, or for the website breaking down or not functioning properly.
- Google Merchant Center. You are solely responsible for ensuring that feeds are set up, working properly and complying with all standards throughout the term of this Agreement from your website and imported into Google Merchant Center, including all products you want to advertise. We will assist in troubleshooting and providing instructions on what to do to ensure feeds are accepted into Google Merchant Center for advertising. However, if we are required to set up and maintain the feed, we will charge additional fees.
Conversion Tracking. Conversion actions will only be tracked if your website allows it. Some websites will need to be modified to track certain actions. While we aim to set this up for you in the allotted conversion tracking set up time, if we do not have proper access, if it takes us longer than three hours or if the website is determined by our team to be complex, you are responsible for creating the proper pages for us to be able to track conversions, revising the website so phone numbers and email addresses are clickable and implementing other features so the desired conversion actions are trackable. Any tracking of conversions that take place outside of your website is not included in this agreement
Ensuring Activation and Connection of All Necessary Platform Accounts, Features and Properties. You are solely responsible for ensuring that all platform features, properties and accounts are properly registered, linked, connected to each other, and continuously held in good standing. The Services we provide may be dependent on the communication and cross-functionality between the platform features, properties and accounts, so failure by you to ensure the requirements set forth herein may significantly impact the results or success of the Services.
4.4 What we do not do.
We do not do any of the following:
- Provide any services other than those that are explicitly set forth in this Agreement (including Sections 1 through 3).
- Work miracles. If your site, Google Ads account and other search engine advertising accounts have a poor trust rank/value / search engine history, that poor rating will affect the results that we can achieve. Good work by us may not counteract any ongoing negative impact of poorly managed sites and search engine advertisings accounts.
- Follow other people’s views or opinions, we will not incur costs exploring alternative views (unless you pay us to do so) and we do not offer rebates or refunds. Again, you can at any time terminate our engagement – see Ending our engagement below. However, if you don’t like what we do, or you or other consultants that you engage think that we should do (or have done) things a different way, we will willingly consider other reasonable views.
- Have perfect knowledge about what will work for your brand, products or services. We will apply our experience, but good experience doesn’t mean that we can predict the future or what will work for your brand, products or services. We will test and experiment and try to optimize your budget, and we’ll build upon what we learn from acting for you, but we will discover that some things we do don’t work well.
- Take over your security and password management of your accounts. We will take all reasonable steps to prudently manage and protect security of passwords and your confidential information as entrusted to us while in our possession and control, but we do not monitor what you or third parties may do. You remain solely responsible for security of your accounts and for monitoring your accounts to detect unauthorized or illegal activities.
- Monitor what your competitors or other third parties may do. You should tell us of anything you think is relevant and may assist us in optimizing our service to you.
- Disclose our working methodologies, reverse engineering results or inform you of links that we build. These are each our highly confidential and valuable trade secrets and therefore are not disclosed to you or other clients or our competitors, whether during the period that we provide services to you or subsequently. Because we protect our trade secrets often we will decline to provide details as to how we do things to your other consultants and advisers. If you don’t like what we do, or you don’t think you can verify the results that we achieve, you can terminate our engagement – see Ending our engagement below.
- Provide services that are readily capable of verification. Google Ads optimization is based upon opinion, strategies and methodologies that evolve with changes in search engines. Other Google Ads optimization consultants are likely to express different opinions and use different strategies or methodologies. There is usually no ready right or wrong at any point of time as to Google Ads optimization: you rely upon our opinions and our decisions. If you don’t like what we do, or you or other consultants that you engage think that we should do (or have done) things a different way, we will willingly consider other reasonable views. However, we do not follow others views or opinions (including those expressed by any search engine or platform), we will not incur costs exploring alternative views (unless you pay us to do so) and we do not offer rebates or refunds. Again, you can at any time terminate our engagement – see Ending our engagement below.
- Make any guarantees, express or implied, regarding the results of our services, including, but not limited to: (a) guarantying that our Google Ads services will deliver particular results or deliver improvements within a particular period of time; (b) guarantying that results that we are able to achieve for your site will apply for any period of time. Search engines change ranking methodologies and systems, often without prior notice or any announcement. If you buy our services for a term we will respond to changes as soon as we reasonably can, after any change is detected by us; (c) guarantying that your website and Google Ads account will never be subject to a search engine penalty or that over-optimization will not occur. Search engine algorithms change frequently, often without notice or explanation; (d) guaranting any final outcome of traffic and leads we generate; or € guarantying any level of success, profit, performance or results.
- Guarantee that results that we are able to achieve for your site will apply for any period of time. Search engines change ranking methodologies and systems, often without prior notice or any announcement. If you buy our services for a term we will respond to changes as soon as we reasonably can, after any change is detected by us.
- Guarantee that your website & Google Ads account will never be subject to a search engine penalty, account suspension, account closure or that over-optimization will not occur. Search engine algorithms and policies change frequently, often without notice or explanation.
- Guarantee that you will like or approve of the ads written by us and used in your campaigns. We build ads, based on our knowledge and experience, the information provided to us by you, what we can see on your website, as well as to fit in with Google Ad’s character limits. You may not agree or approve of how an ad looks or sounds after it has been running. While we can change the ad if you request it in writing, for the future, we can not take responsibility for any spend on the ad for the duration it was active.
- Fix your site content or structure or correct errors in your site content or structure, including poor historical Google Ads account history and any errors or deficiencies arising from previous Google Ads optimization, search engine optimization and marketing work done by other providers. Those fixes are not included in our fees: you should engage properly experienced web designers and web developers to work with you on your site content and structure. Our task is to optimize your Google Ads campaign for your desired results, not to fix your site content or structure, but we work with your site as we find If we recommend changes to site content and structure, you should engage web designers and web developers to work with you on your site content and structure.
- If your site has at any time has a structure or operation that in our reasonable opinion is unsafe or unduly difficult to work with, we may advise you and recommend changes. If you do not implement those changes we may terminate provision of services.
- Take responsibility for your decisions. If you tell us to do something that we don’t agree with and we elect to do it at your instruction, you will be responsible for the results. If you change your website frequently or in ways that you don’t tell us or that are not accepted industry practice, we won’t be responsible for any adverse effects and we may not be able to provide our service.
- Refund money paid by you if you don’t like the results. We will apply our skills to endeavor to achieve good results for you. That requires us to expend significant staff time and other resources, so we don’t offer satisfaction or your money back.
- Update or adjust keywords or other optimization features of your site unless you provide us continuing access to your site to make updates or adjustments. If you change access settings we will not be responsible for inability to update or adjust settings or features.
- Update or adjust keywords or other optimization features of your site continuously or in response to changes at greater than normal business frequency. We will advise when the site changes exceed normal business frequency and will provide possible solutions to resolve any issues and problems we are aiming to fix.
- Update ads based on information that is not communicated to us via email, even if you update your website. We rely on you to inform of us explicitly about any changes on your site or business that could impact your ads or campaign in general
- Ensure that your site will not be hacked or information security compromised in any way. We will take all reasonable steps to ensure that our employees safeguard passwords and other information about access to your site, but we are not responsible for or in relation to any actions by third parties or for providing any advice or assistance to you in relation to information security or dealing with a breach of information security (whether by hacking, denial of service attack or any other disruption).
- Provide consulting or other services in relation to your dealings with search engine operators, regulators or other parties. We will reasonably cooperate to facilitate your dealings with such parties, but if work is involved we may charge you for such services.
- We do not provide additional or customized reporting with respect to modifications of our existing reports. Any additional reporting, or modifications to reports requested by you, other operators, consultants or other third parties represented by you is expressly acknowledged to be beyond the scope of this Agreement. To the extent we are required to provide additional or customized reporting, these reports will result in extra fees charged to you.
- Provide services (including conversion tracking) for conversions other than those set up and/or imported in Google Ads, Microsoft Ads, Facebook Ads, Google Analytics or any other platforms we agree to in writing. Conversion tracking on any other platform is outside of the scope of our services under this Agreement and if we, in our sole discretion, agree to provide such additional services, you will be quoted and billed separately.
- Take responsibility for the quality of sales, what business we do or do not generate for you, or your business in the future.
- Verify daily that all conversion values and amounts are accurately being imported from your website to Google Ads. We will optimize what we see in Google Ads. It is your responsibility to verify daily and inform us if the results we are seeing does not match up with the values and amounts you are seeing on your end.
- Take responsibility for the actions of any third party, including Google or any other platform. These platforms can unilaterally decide to block, suspend or cancel campaigns or accounts without providing any reason. We are not held liable for their actions or omissions. We are also not responsible for any changes made to your website by you or any third party that adversely affects the search engine rankings of your website.
4.5 How we charge you.
Any written quotation is on the basis of what you told us about your website and what we could see of that site from an external review. Our quotation assumes that once we get reasonable access to the backend of your site, that access will facilitate us doing our work.
Our charges are:
- an initial fee, payable upfront and non-refundable, which is for starting our commercial arrangements and dependent on the level of service and number of ad groups you choose for your campaign;
- a flat monthly fee, starting from the date of payment of the initial fee (this date is the start date) and then payable monthly in advance and non-refundable dependent on the level of service and number of ad groups you choose for your campaign;
- if media spend exceeds the agreed monthly amount, 10% percent of media spend exceeding such amount (which replaces our flat monthly fee);
- media buy and advertising spend that we do on your behalf; and
- additional fees for out of scope work that you ask us to do.
Pricing assumes timely delivery of necessary information, approval of deliverables and no change in scope by you. If delays by you lengthen the process or make providing our services more difficult, we reserve the right to charge additional fees to provide for any additional necessary resources. Any change in scope, including request for additional or regular meetings will also require additional fees and approval.
We shall invoice you monthly in advance, in reasonable detail describing services rendered and deliverables provided under this Agreement. We reserve the right to change the amount invoiced for any percentage of media spend if the applicable platform changes the media spend reported in the platform after our invoice has been sent. You must pay our invoices promptly (within 7 days of invoice date) or we may elect to charge you a monthly finance charge of 1.5% of the total balance of the invoice and/or suspend provision of services or terminate this Agreement. We may also elect to submit your account to a debt collection service, and you shall pay any associated fees incurred in connection with collection of any amounts owed to us under this Agreement.
We bill in United States dollars for payment into our nominated bank account. Where value added tax or other sales taxes or duties apply, these will be charged to you and must be paid by you in addition to our quoted fees. Where bank charges or remittance fees apply, you need to pay such amount and ensure that we receive the amount due to us without deductions in our nominated bank account.
You are responsible for all expenses of our personnel in performing the services and/or providing the deliverables under this Agreement and all pass-through license fees, which, in each case, you approve in advance or are otherwise described in this Agreement. Except for the foregoing, we shall be responsible for all costs and expenses incidental to the performance of the services or for the preparation of the deliverables described in this Agreement. Except as expressly stated herein, we are solely responsible for payment of all costs of our own equipment during the term of this Agreement, and accordingly, we shall bear all applicable sales, use or other taxes assessed against the use of such equipment associated with the services or deliverables described herein.
You agree to pay our fees and charges in full, regardless of the results delivered (including number and quality of leads, improvement in website traffic or Google Ad results), total media spend or overspent budget and whether you are satisfied or dissatisfied with such matters. You acknowledge and agree that we do not guarantee any results and that our fees and charges are payable in full regardless of your satisfaction or dissatisfaction with such results or our performance.
4.5.1 What is included in the monthly fee?
This includes everything that is stated (in our documentation of a package) as a feature of the Google Ads process for the level of package that you sign up for. Algorithmic changes and fixes for situation-specific problems, including cleaning up poor historical Google Ads accounts requiring extra work (beyond the Google Ads Management process scope) will be quotable and billable.
HTML errors that we identify are your responsibility. We may choose to fix HTML errors, but we can only address HTML errors if sufficient access is allowed by you and the site is compatible to allow title tag, meta description tag, heading tag and content changes. Also, we may consider that the risk of making changes to your website is high, for example, because it is unusually complicated (such as having a custom content management system with many inter-relationships) or because it is an environment with which we are not sufficiently familiar or which is proprietary. In such cases we may decline to perform work directly on your site but will still provide all the recommended changes and advise of what to do to support our optimization efforts.
Where you make (or allow others to make) changes to your website, we may decline to correct errors or otherwise perform work reasonably related to the effect of those changes, or quote you for additional work.
A standardized performance report will be sent every month except in circumstances where our work has been disrupted through reasons related to Google or your payment.
We do not provide additional or customized reporting with respect to modifications of our existing reports. Any additional reporting or modifications to our standard reporting requested by you, other operators, consultants or other third parties represented by you will result in extra fees charged to you.
4.5.2 Changes in fees.
We can change our fees at any time by giving you at least 30 days’ prior notice.
If you do not agree to pay our changed fees, you may elect to terminate this Agreement in accordance with Section 4.10.
All notices required by or permitted to be given under this Agreement will be in writing and will be deemed to have been duly given if and when: (i) delivered personally; (ii) mailed by first class certified mail, return receipt requested, postage prepaid; (iii) sent by a nationally recognized express courier service, postage or delivery charges prepaid; or (iv) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day; and in all events will be deemed given upon receipt. All notices will be sent to the applicable party’s representative as set forth below:
If to you:
If to us:
Digital Spotlight LLC
14622 Ventura Blvd
Ste 102 PMB 2038
Sherman Oaks, CA 91403-3662
Attn: Chief Executive Officer
Notices shall be deemed received on the earliest of personal delivery; upon twenty-four (24) hours following deposit with a bonded courier or overnight delivery company; when sent, if sent by electronic mail during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day; or seventy-two (72) hours following deposit in the U.S. Mail as required herein; and in all events will be deemed given upon actual receipt.
4.7 Who Owns What?
We have created, acquired or otherwise have rights in, and may, in connection with the performance of our services, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, forms, general purpose consulting and software tools, utilities and routines, and logic, coherence, evaluations, analysis, recommendations, specifications, scripts, messaging content not exclusively produced for you (including, but not limited to, social network content, articles, newsletters and content), manuals, plans, research materials and methods of operation of systems (collectively, “our Technology”). To the extent that we use any of our Technology in connection with the performance of our services, we retain all right, title and interest in and to such property, and, except for the license expressly granted hereunder, you shall acquire no right, title or interest in or to our Technology. In furtherance and not in limitation of the foregoing, you shall not analyze, have analyzed, otherwise disassemble, reverse engineer or attempt to reverse engineer our Technology, including, without limitation, links built by us for you, all of which are hereby acknowledged and agreed to be our Confidential Information and trade secrets. Except as expressly provided in this Agreement, all Technology shall remain our sole property. We agree that, except for our Technology contained therein, all original or creative products or other material that are developed or created by us and submitted to you in connection with the services and deliverables to be provided under this Agreement, including, but not limited to, brochures, custom newsletter content, custom web copy and custom advertising copy (collectively, the “Works”) shall be considered solely your property, shall be totally under your dominion and control, and shall be registered, trademarked or copyrighted in your name only. The Works shall not be deemed to include, by definition, any third-party software or related documentation licensed directly to us or you, or any modifications or enhancements thereto or derivatives thereof. We hereby grant to you, a non-exclusive, royalty-free, worldwide, perpetual, nontransferable license to use and reproduce, for your internal business purposes (including use by your affiliates), any of our Technology contained in the Works. Such license shall not require payment of any additional fee to us, other than the fees set forth in Section 2 of this Agreement. For purposes of copyright ownership only, and no other purposes whatsoever, all Works shall be deemed to be a “work made for hire” under the U.S. Copyright Act and all of the Works and all rights appertaining thereto, including all copyrights whether known or hereafter created throughout the world and all rights of renewal thereof, are entirely your property, free from the payment of any additional compensation whatsoever. To the extent the Works are not deemed a work-for-hire or to the extent we may own or be deemed or adjudged under the law of any country to own any copyrights or any of the rights comprised in a copyright in any of the Works, such copyrights and other rights are hereby assigned and transferred to you, absolutely and forever, in consideration of the mutual covenants contained in this Agreement. Upon written request, we will reasonably cooperate and will execute any and all documents or instruments necessary to carry out the purposes of this Section 4.7, including, but not limited to, such further assignments of rights in individual Works as you may deem necessary or appropriate for your full and complete enjoyment and perfection of all rights in the Works, provided that you shall bear the reasonable costs incurred by us as a result of such cooperation and execution. The provisions of this Section 4.7 shall survive termination or expiration of this Agreement.
4.8 Treatment of confidential information.
Pursuant to this Agreement, we and our personnel, on the one hand, and you and your employees, members, managers, directors, officers, shareholders, partners, agents, contractors and consultants and their personnel, on the other hand, may have access to confidential and proprietary information and materials belonging to or disclosed by a party to this Agreement (each, a “Disclosing Party”) to the other party (each, a “Receiving Party”) whether disclosed before or after the date of this Agreement, electronically, orally, in writing, or by display, which is not generally disclosed to or known by public, concerning or pertaining to the business of the Disclosing Party, including, without limitation, trade secrets, data, reports, methods, techniques, procedures, designs, formulas, processes, methodologies, forecasts, financial information, development, technical, manufacturing and marketing plans, employees, partners, customers, suppliers, and/or projects, and that such information is commercially valuable to the Disclosing Party or is otherwise confidential and proprietary to such party (“Confidential Information”). Confidential Information does not include know-how or information which is not specific to the Disclosing Party, whether disclosed to the Receiving Party or whether developed by either party during the course of this Agreement. Nothing in this Agreement grants to either us or you any license, right, title or interest in or to the Confidential Information, except as expressly set forth herein. Each party reserves all rights to its Confidential Information not expressly granted in this Agreement. The sole purpose in disclosing Confidential Information hereunder or allowing access to such Confidential Information is to aid each party in performing under this Agreement. Each party shall use Confidential Information solely for the purposes of executing and performing the terms of this Agreement and for no other purpose whatsoever. We and each of our personnel, legal representatives or professional advisors and subcontractors, on the one hand, and you and your employees, members, managers, directors, officers, shareholders, partners, agents, contractors and consultants and their personnel, on the other hand, will receive and hold such information in the strictest confidence. Each party shall use reasonable efforts to protect the confidentiality of Confidential Information but in no event any less care than the Disclosing Party takes to protect its own Confidential Information, and will cause others to protect such information no less that to the extent set forth herein. Each party shall provide the other with such further assurances as requested by such party from time to time. Each Receiving Party further agrees that, without the prior written consent of the Disclosing Party, such Receiving Party shall not disclose to third parties or otherwise use except in accordance with the terms of this Agreement, any information obtained from or through the Disclosing Party in connection with this Agreement, unless it can be established that (a) the information is rightfully known to the Receiving Party prior to obtaining the same from the Disclosing Party; (b) the information is, at the time of disclosure to the Receiving Party, then in the public domain; or (c) the information is obtained by the Receiving Party from a third party who did not receive the same, directly or indirectly, from the Disclosing Party.
The Receiving Party may disclose Confidential Information if required to do so by law but will inform the Disclosing Party of any request to disclose Confidential Information as soon as reasonably possible. Notwithstanding the other provisions of this Section 4.8, we shall have the right to describe and use your name and the results of this engagement in our printed or online promotional materials.
Upon written request or upon expiration or termination of this Agreement for any reason, each party will promptly: (a) return or destroy, at the requesting party’s option, all originals and copies of all documents and materials it has received containing Confidential Information; (b) deliver or destroy, at the requesting party’s option, all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by the other party or prepared under its direction or at its request from the documents and materials referred to in subsection (a) above, and (c) either return or destroy all materials, in whatever form, and copies thereof containing any Confidential Information; and in the event that such materials are to be destroyed, provide the requesting party with a certification of such destruction signed by an authorized representative of the other party.
This Section 4.8 is intended to supplement and does not supersede any written confidentiality or nondisclosure agreement existing between the parties. This Section 4.8 shall survive termination or expiration of the Agreement.
4.9 No Exclusivity.
We’re often asked to commit to only do work for a client in a particular industry sector or geography. As this Agreement may be ended by you at any time on short notice and our charges don’t reflect the opportunity cost of not doing work for others, our services to you are non-exclusive. We may provide services to your competitors, provided that we abide by the limitations set forth in Sections 4.7 and 4.8 of this Agreement.
4.10 Ending this agreement.
We rely upon the reliability and quality of our services and results to convince you to continue this Agreement. For this reason, we do not significantly restrict termination of this Agreement. You or us can terminate this Agreement effective 30 days following the next payment due date/monthly anniversary date by giving the other notice prior to the next payment due date/anniversary date. For example, if your monthly payment due date/monthly anniversary is on the 5th of April, notice to terminate must be received prior to the 5th of April to terminate at earliest on the 4th of May of that same year. Subject to applicable law, you shall not be entitled to any refund of any monies paid to us prior to the effective date of termination due to your failure to timely notify us of your intention to terminate this Agreement. Any work we complete prior to the effective date of termination but not yet invoiced to you will be immediately invoiced upon your notification of termination, and you shall promptly pay such invoice in full upon its presentation to you. Sections 4.5, 4.7, 4.8, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 shall survive any termination or expiration of this Agreement.
Because it is easy to terminate this Agreement, we do expect to be paid promptly and in full while the agreement is in operation, and through the effective date of termination. We are not required to give notice to you prior to suspension or termination if we suspend or terminate provision of services to you because you do not pay us in accordance with the payment terms set forth in this Agreement. Subject to applicable law, we don’t provide refunds, but we will continue to provide services until termination of this Agreement takes effect.
4.11 Disclaimer of Warranty.
THE WARRANTIES STATED IN SECTION 4.15.1 BELOW ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARE OFFERED TO YOU OR ANY THIRD PARTY HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF DESIGN, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO AGENT OF OURS IS AUTHORIZED TO ALTER OR EXCEED OUR WARRANTY OBLIGATIONS AS SET FORTH IN THIS AGREEMENT. Our obligations with respect to such warranties shall be contingent on your compliance with your responsibilities under this Agreement and your use of our services and deliverables provided under this Agreement in accordance with our instructions as provided by us. We shall have no warranty obligations with respect to any failures of the services or deliverables which are the result of accident, abuse, negligence, or misapplication by you. The results described in this Agreement, including without limitation the benefits described in Section 1.3 of this Agreement, do not constitute a guarantee of results. We do not guarantee our results of Google Ads optimization or per click services, or that such results will occur within any specified period of time. Furthermore, we do not guarantee that your websites will never be subject to search engine penalties or the effects of over-optimization. Actual results may vary and are subject in all respects to your compliance with your obligations hereunder, including without limitation those set forth in Section 4.3, as well as the other terms and conditions of this Agreement.
In furtherance and not in limitation of the foregoing, and notwithstanding anything else to the contrary in this Agreement you hereby acknowledge and agree to each of the following:
- Search engine features and requirements often change without notice. It is impossible for us to predict what changes may be made by search engines and other sites that compete for ratings, and our predictions in this regard may be wrong. We reserve the right to alter our approach to achieving the objectives outlined in this Agreement in response to such search engine changes without notice to you.
- Our ability to achieve the results described in the Agreement will be negatively impacted to the extent your website suffers from with poor trust rankings, value and/or historical links, poor Google Ads account history and our services may not positively impact or counteract the ongoing negative impact of your poorly rated site.
- Google Ads optimization is based upon opinion, strategies and methodologies that evolve with changes in search engines. Other search engine optimization consultants are likely to express different opinions and use different strategies or methodologies. We will consider other reasonable views in the execution of our services, including yours or those of your representatives. However, we may exercise our sole discretion in altering or declining to alter our approach to performing the services hereunder in accordance with such views and opinions. In any case, we will not incur unreimbursed costs in exploring such alternative views and opinions and do not offer rebates or refunds to our, to the extent we decline to alter our approach.
- We will not refund any monies paid by you in the event that you are not satisfied with the results achieved as a result of the services performed under this Agreement. Our services provided hereunder require the expenditure of significant staff time and other resources, and no guarantee of results is given
- Although changes to search engine algorithms happen in real time, we will not update or adjust keywords or other optimization features in real time or continuously in response to such changes. To the extent that changes to search engine algorithms require a response that exceeds the response timing and frequency expectations set forth in the Agreement, we will advise you of such delay in response and its cause, but cannot otherwise be held responsible for such response delays.
- We do not guarantee or otherwise ensure that your website or information security thereon will not be hacked or compromised in any way, and are not responsible for any actions taken by third parties or for otherwise providing advice or assistance to you regarding information security or breaches thereof.
- We do not provide consulting or other services with respect to your separate interactions with search engine operators, regulators or other third parties, and such work is expressly acknowledged to be beyond the scope of this Agreement. To the extent we are required to perform services in relation to your dealings with such third parties, such services will result in extra fees charged to
- We do not provide additional or customized reporting with respect to modifications of our existing reports. Any additional reporting, or modifications to reports requested by you, other operators, consultants or other third parties represented by you is expressly acknowledged to be beyond the scope of this Agreement. To the extent we are required to provide additional or customized reporting, these reports will result in extra fees charged to you.
4.12 Limitations and Disclaimers of Liability.
To the maximum extent permitted by applicable law, we expressly disclaim all liability to you or any third party relating to: (i) any errors, omissions, interruptions, delays, defects, technical inaccuracies or typographical errors in the content on your website, (ii) availability of your website at any particular time or in any particular location, (iii) any viruses or other harmful components present on your website, (iv) personal injury or proeprty damage, of any nature whatsoever, resulting from provision of our services hereunder, (v) our negligence or (vi) the illegal conduct of any third party.
To the extent permitted by applicable law, our liability under this Agreement is capped at an amount equal to the aggregate amount paid by you under this Agreement.
WE SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA) ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THIS AGREEMENT OR THE RIGHTS PROVIDED HEREUNDER SUFFERED BY YOU OR BY ANY ASSIGNEE, TRANSFEREE, OR THIRD PARTY CLAIMING RIGHTS DERIVED FROM A PARTY TO THIS AGREEMENT, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. ANY PROVISION HEREIN TO THE CONTRARY NOTWITHSTANDING, OUR MAXIMUM LIABILITY TO ANY PERSON OR ENTITY WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH ANY SERVICES OR DELIVERABLES DELIVERED TO YOU HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, WARRANTY, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, SHALL IN ALL CASES BE CAPPED AT AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT PAID BY YOU UNDER THIS AGREEMENT AND SHALL BE REDUCED PROPORTIONATELY TO THE EXTENT THAT YOUR NEGLIGENCE OR WILLFUL MISCONDUCT OR THAT OF YOUR EMPLOYEES, REPRESENTATIVES OR AGENTS CONTRIBUTED TO THE LOSS OR LIABILITY.
We rely upon you to obtain all consents and approvals from owners of trademarks, trade names, other identifiers of products or services and other intellectual property that you inform us that we may use to promote and market your business and products and services offered by you, and all consents and approvals you may require from individuals in relation to collection, use and disclosure of personal information about them, in full compliance with all laws that affect activities conducted pursuant to this Agreement. If you don’t get those consents and approvals or give notices as required or otherwise comply with applicable laws, we rely on you to satisfy all claims by your customers and other users and you must indemnify us against Losses reasonably incurred by us in connection with such third party claims and actions in accordance with Section 4.13.
You agree to indemnify and hold us, our subsidiaries, affiliates, licensors, suppliers, content providers, service providers, employees, agents, officers, directors, shareholders, members, managers, partners and contractors (collectively, the “Indemnified Parties”) harmless from and against any and all claims, liabilities, costs, losses, expenses, damages, judgments, and awards (including attorneys’ and accounting fees and costs) (collectively, “Losses”) that an Indemnified Party incurs arising from:
- your breach of this Agreement;
- any claim brought by a third party to whom you have distributed or otherwise sublicensed our Technology underlying the Works in violation of this Agreement;
- any alleged infringement or misappropriation of any third party rights (including intellectual property rights) by the Works (other than with respect to our Technology), any aspect of your website or any other materials provided to us by you;
- any claim that our website, services and/or software products infringe or misappropriate the intellectual property rights or other personal rights of a third party as a result of materials provided to us by you;
- your unlawful or negligent acts or omissions, except to the extent that we contribute to the Loss;
- failure by you to maintain in good order your accounts for relevant services contracted by you, to pay these accounts on time, and to monitor these services to detect authorized or unauthorized access or use;
- any Loss that you may suffer arising from any unauthorized access to your accounts or use of your accounts by any person at any time, except to the extent that such Loss is directly attributable to a failure by us to take reasonable steps to prudently manage and protect security of passwords and your Confidential Information as entrusted to us while in our possession and control;
- any defect in any material that is provided by you or at your direction to us and in any work or services performed by you or performed at your direction (other than our work);
- costs (including debt collection costs and full legal fees and expenses) that we incur in attempted recovery of any sum, including any indemnified amount, that is payable by you to us but not paid when due; or
- any federal, state, local or foreign civil or criminal actions related to your website, services and/or software products.
Each party must take reasonable steps to mitigate Loss. The liability of an indemnifying party for Loss will be reduced proportionally to the extent that the Loss was caused or contributed to by a negligent act or omission of the other party or by a breach of this Agreement or of any applicable law by the other party.
4.14 Sorting out disputes.
We shall each use reasonable best efforts to resolve in good faith any dispute arising under or concerning this Agreement. If we cannot resolve such dispute, we agree to mediate in good faith continuously for sixty days before commencing court proceedings (except for urgent injunctive or declaratory relief).
4.15.1 Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) such party has the full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant any rights granted to the other party hereunder; (b) such party has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude such party from complying with the provisions hereof; and (c) such party shall comply in all material respects with all applicable laws in the performance of its obligations hereunder.
4.15.2 Governing Law. This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the State of California, including its statutes of limitations. To the extent any action or proceeding arising in any manner out of or from this Agreement may be brought before a court, the parties hereto irrevocably accept generally and unconditionally the exclusive jurisdiction and venue of any federal and state court located within Los Angeles County, California.
4.15.3 Remedies. Each party hereto acknowledges and agrees that a breach, or threatened breach, of any confidentiality or intellectual property provisions hereunder will cause irreparable harm to the other party, for which monetary damages will not be an adequate remedy, and, therefore, the other party shall be entitled to seek injunctive relief in addition to any remedies it may have hereunder or at law or equity. Except as set forth in Section 4.12, the remedies in this Agreement shall not be exclusive of any other remedy either party may have against the other party at any time, and shall not limit either party’s ability to seek other remedies available under law or in equity. Remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.
4.15.4 Legal Costs. In the case of any dispute between us and you, you will bear all of your legal and other costs. This will include, but shall not be limited to costs associated with the engagement of debt collection services by us, our affiliates, subsidiaries or parent companies in any attempts to recover fees from you, whether successful or unsuccessful.
4.15.5 Force Majeure. Notwithstanding anything to the contrary in this Agreement, if either party is prevented, hindered or delayed from performing any of its obligations under this Agreement by a Force Majeure Event (as hereinafter defined) then: (a) that party’s obligations under this Agreement shall be suspended for so long as the Force Majeure Event continues and to the extent that party is so prevented, hindered or delayed; (b) as soon as reasonably possible after commencement of the Force Majeure Event that party shall notify the other party in writing of the occurrence of the Force Majeure Event, the date of commencement of the Force Majeure Event and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement; (c) if that party fails to give the notice referred to in subsection (b), it shall forfeit its rights under subsection (a); (d) that party who has given notice to the other under subsection (b) shall use all reasonable efforts to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement; and (e) as soon as reasonably possible after the cessation of the Force Majeure Event that party shall notify the other party in writing of the cessation of the Force Majeure Event and shall resume performance of its obligations under this Agreement.For purposes of this Agreement, “Force Majeure Event” shall means any acts of God, acts of government, acts of terror, war, riot, strikes, civil commotion or unrest or other labor problems (other than those involving our employees), malicious damage, compliance with any law or governmental order, rule, regulation or direction or any overriding emergency procedures of government or other competent authority, fire, flood, storm, co-location facility downtime, earthquakes, or drought, Internet service provider failures or delays, risk of infectious disease, disease outbreak, epidemic, pandemic whether as the result of the spread of COVID-19 or other communicable disease or quarantine.
4.15.6 Independent Contractor Status. We are an independent contractor providing professional services and not your employee, agent, joint venture or partner. Nothing in this Agreement, nor in a course of dealing or by way of any aspect of this commercial relationship, shall be interpreted or construed as creating the relationship of employer and employee between you and us and/or our personnel. We will act as an independent contractor and shall not serve as an agent, nor shall deemed an employee, of you for the purposes of any employee benefit program, income tax withholding, FICA taxes, unemployment benefits, insurance coverage or otherwise. We shall not, and shall have no authority to, commit on behalf of the you, or to bind you to or under, any obligation or liability, or to enter into any contract, agreement or instrument on your behalf. We: (a) will determine the method, details, and means of performing the services under this Agreement according to our independent and professional judgment, in accordance with all requirements of applicable law and substantially in accordance with generally accepted practices and principles of our trade, (b) will supply all equipment and instrumentalities required to perform the services, (c) have and will maintain any licenses necessary for our performance of the services, and (d) will use our own employees to perform the services, and will have sole power and responsibility to hire, fire, train, instruct, manager and supervise all of our employees, provide our own worker’s compensation, comprehensive liability, and other customary insurance. We will conduct our business as follows: (i) maintain a separate business location; (ii) set our own terms with third party suppliers of goods and services; (iii) set our own hours of work; (iv) maintain our own business and schedule, and our own books and records; and (v) be customarily engaged in the same type of work as performed under this Agreement with other companies or otherwise hold ourselves out to potential customers to perform the same type of work.
4.15.7 Subcontracting. We may engage our employees and/or third-party consultants or independent contractors to perform the services and/or create the deliverables described hereunder. Subcontracting the provision of any portion of the services and/or deliverables described hereunder shall not relieve us of any of our obligations under this Agreement.
4.15.8 Headings; Exhibits. The various section headings of this Agreement are inserted only for convenience of reference and are not intended, nor shall they be construed to modify, define, limit, or expand the intent of the parties as expressed in this Agreement. All exhibits and addenda which are referenced herein and appended hereto, or are signed by the parties on or after the date of this Agreement, are hereby incorporated by reference.
4.15.9 Waivers. All waivers hereunder must be made in writing, and failure at any time to require the other party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. A waiver of a breach of any of the provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions.
4.15.10 Assignment. Neither party may assign, transfer or delegate any of its rights or obligations without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety with prior written notice to the other party, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
4.15.11 Enforceability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court of competent jurisdiction finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed written, construed, and enforced as limited.
4.15.12 No Construing Against Drafter. This Agreement is the result of arm’s length negotiations between the parties and shall be construed to have been drafted by all parties such that any ambiguities in this Agreement shall not be construed against either party.
4.15.13 Entire Agreement. This Agreement constitutes the complete and exclusive statement of agreement among the parties with respect to the subject matter herein and replaces and supersedes all prior written and oral negotiations, understandings, and agreements among the parties with respect to such subject matter. The parties acknowledge and agree that no party hereto has made any representations or promises in connection with this Agreement or the subject matter hereof not contained herein, and no party is entering into this Agreement in reliance on any such representations, agreements, arrangements or understandings, oral or written, if any. All modifications and amendments to this Agreement must be in writing and signed by the parties. If the payment terms or fee structure contained in this Agreement are to be altered, the parties must enter into a new agreement.
4.15.14 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. This Agreement may be executed by any party by delivery of a facsimile, .pdf signature or other electronic signature, which signature shall have the same force and effect as an original signature.
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