Terms of Service
Updated: October 1, 2026
Version: 2026.10.1
These Online Terms are incorporated by reference into the Internet Marketing Agreement (the “Agreement”) between Logical Position LLC (“Provider”) and the client identified in the Agreement (“Client”). Capitalized terms have the meanings given in the Definitions section below or in the Agreement. These Online Terms are effective only to the extent consistent with the Agreement; in the event of a conflict, the Agreement controls, except where the Agreement expressly provides that a specified Online Term controls.
Definitions and Interpretation
In this Agreement (the “Agreement”):
“Ad Platform(s)” refers to the third-party platform(s) and their affiliates where the Client’s advertisements may be listed.
“Ad Spend” means the amounts payable to the Ad Platform(s) where the advertisements may be listed.
“Aggregated Data” means data or insights derived from Client Data that have been (a) aggregated or combined with data of the Provider’s other clients, and/or (b) de-identified or anonymized in accordance with the De-identification Standard set forth in the De-identification Safeguards clause, in each case such that the resulting data does not identify, and cannot reasonably be used (taking into account all means reasonably likely to be used) to identify or be linked to, the Client, the Website, or any natural person.
“Bill Date” refers to the date each month, for each Service, when Monthly Recurring Charges will be due from Client and invoiced by Provider. If Charges for Services are paid annually or semi-annually instead of monthly, Provider will only bill Client semi-annually or annually, and if needed, will reconcile payments on each monthly Bill Date throughout the Term. By default, this date will initially be set as the same date each month as the Execution Date for each Service. Any delay in processing Monthly Recurring Charges, including, but not limited to holidays, weekends, processing issues such as declined or expired credit cards, or any other payment-related delays, will not affect the Bill Date.
“Charges” means the fees and amounts payable by the Client to the Provider under or in relation to this Agreement and/or the Contract Documents, as outlined in the Statement of Work.
“Client Data” means all data and information provided by or on behalf of the Client to the Provider, or accessed, collected, generated, or derived by the Provider in connection with this Agreement and/or the Services, including without limitation account and campaign configurations, advertising performance data, analytics, conversion data, and Website data. Client Data does not include Aggregated Data.
“Contract Documents” shall consist of 1) this Internet Marketing Agreement, including, without limitation, any and all exhibits attached to this Agreement at the time of execution, properly executed amendments and/or modifications, and other documents listed or otherwise referenced in this Agreement; 2) the Statement of Work, including, without limitation, any and all plans, drawings, specifications, addenda, exhibits, requests for information, general and special conditions, change orders, modifications or amendments, Website Development Scope(s), and other similar documents executed or issued in connection therewith; 3) the Signature Page; 4) and the Card Authorization Form.
“Execution Date” refers to the date when the Contract Documents have been signed, executed, returned to both Parties, and any Total Initial Charges on the Statement of Work have been invoiced by Provider.
“Marketing List Data” means Client Data contained in marketing lists, including email addresses, telephone numbers, SMS contact information, consent records, opt-out records, and related identifiers, that is provided by or on behalf of Client.
“Service(s)” means the service(s) required under or in connection with this Agreement and the Contract Documents, as detailed in the Statement of Work and these Online Terms.
“SKU(s)” Stock Keeping Unit(s).
“Statement of Work” refers to the statement of work attached to this Agreement.
“Term(s)” For the purposes of this Agreement, the word “Term(s)” shall mean the actual time during which this Agreement is effective, as detailed in the Statement of Work, including the initial term(s) and any term extensions of this Agreement.
“Website” means the website URL and/or web services specified in the Statement of Work, to be marketed by the Provider under this Agreement.
“Website Development Scope(s)” An attached document for Website Development Services that outlines definitions, project stages, project hours, responsibilities, timelines, and deliverables.
Legality and Liability
The Client shall not use the Website or Amazon Platform to host, store, send, relay or process any material, or for any purpose, which: a) is unlawful, illegal, fraudulent, or which breaches any applicable laws, regulations, or legally binding codes; b) infringes any third-party rights; or c) may give rise to any form of legal action against the Provider, the Client, or Provider’s third-party affiliates.
The Client warrants that all marketing lists (including, without limitation, email and SMS marketing lists) provided by or on behalf of the Client to the Provider in connection with this Agreement and/or the Contract Documents are collected and collated in accordance with all applicable laws and regulations, and that Provider may use any such lists for the purposes of the Services.
The Client acknowledges and agrees that it is solely responsible for complying with all applicable federal, state, and local laws, rules, and regulations in the provision of all necessary information to Provider to perform the Services under this Agreement. This includes, but is not limited to, responsibility for determining, satisfying, and maintaining compliance with all applicable registrations and licensing, including, but not limited to the requirements under the Texas Business and Commerce Code (“Tex. Bus. & Com.”) § 302.001 et seq. The Client warrants that it has obtained, and will maintain for the duration of this Agreement, all registrations and licenses required by law. From time to time during the Term, Provider reserves the right to request copies of, or other information relating to, any such registrations and licenses.
In no event shall Provider, its employees, consultants, officers, directors, members, and/or agents be liable for any loss, direct or consequential damage, cost, expense, claim, or other liability of any kind whatsoever (including, without limitation, lost profits, lost revenue, and/or attorney fees), whether caused by, arising out of, resulting from, or occurring in whole or in part due to any negligent act of Provider, except to the extent arising from Provider’s gross negligence or willful misconduct.
In no event shall the total cumulative liability of Provider, its employees, consultants, officers, directors, members, and/or agents (including, without limitation, attorney’s fees) for any claims in connection with this Agreement and/or the Contract Documents exceed the Charges paid to Provider for or otherwise in connection with the Services.
Provider warrants that it shall comply with all applicable laws and regulations governing any aspect of its Services, including all laws and regulations governing personal data and privacy applicable to the Provider’s own processing of Client Data and Aggregated Data. This warranty does not extend to the Client’s own compliance obligations, which are allocated in the data privacy responsibility provisions of these Online Terms.
Intellectual Property
Client grants to the Provider a non-exclusive license to use the Website to the extent required for the Provider to perform its obligations and exercise its rights under the Agreement.
Full rights to the direct work product (meaning advertising copy, images, website modifications and the like, which are the direct product and service being purchased in this Agreement) will remain the property of the Client. All other intellectual property rights including specialized software, systems of creating these products and the like arising in connection with the performance of the Services by the Provider shall be the property of the Provider. The Provider hereby grants to the Client a non-exclusive royalty free license to use any such intellectual property created during the contractual term once said term has been completed in its entirety.
The Client grants the Provider the right to use the Client’s logo, website images, social media images, and performance metrics from Services for marketing and promotional purposes, unless the Client opts out in accordance with the Opt-Out portion of these Online Terms.
Data Protection and Compliance
License to Client Data. The Client grants the Provider a non-exclusive, worldwide, royalty-free right and license to access, collect, use, process, store, reproduce, and retain Client Data during the Term (a) to provide, maintain, support, and improve the Services; (b) to comply with applicable law; and (c) to create Aggregated Data.
Aggregated Data. The Provider may create Aggregated Data from Client Data, and the Provider shall own all right, title, and interest in and to Aggregated Data. Subject to the De-identification Safeguards, Marketing Lists, and Opt-Out clauses of these Online Terms, the Provider may use, reproduce, and disclose Aggregated Data for any lawful business purpose during and after the Term, including without limitation: (a) internal reporting, benchmarking, and analysis across the Provider’s client base; (b) developing and publishing industry-level or vertical-level insights, benchmarks, and trend analyses; (c) improving, developing, and commercializing the Provider’s services, tools, software, and products; and (d) developing, training, testing, tuning, and improving analytical models, algorithms, machine learning systems, and artificial intelligence systems.
De-identification Safeguards. Where the Provider de-identifies or anonymizes Client Data, it shall do so to the standard required by applicable law for such data to fall outside the scope of that law (the “De-identification Standard”), including, where applicable, the “deidentified” and “aggregate consumer information” standards under United States state privacy laws and the “anonymisation” standard under the EU and UK General Data Protection Regulation (“GDPR”). Where Client Data is subject to the GDPR, the Provider shall treat it as personal data unless it has been rendered permanently anonymous such that re-identification is not possible by any means reasonably likely to be used. In all cases the Provider shall (a) take reasonable measures to ensure that such data cannot be associated with the Client or any natural person; (b) maintain and use such data only in de-identified form and not attempt to re-identify it, except as necessary to test the effectiveness of the de-identification process; (c) publicly commit to maintain and use such data only in de-identified form and not to re-identify it; and (d) require by contract that any third party or other recipient of such data comply with the foregoing, and exercise reasonable oversight of such recipients’ compliance.
Marketing Lists. Notwithstanding the License to Client Data and Aggregated Data clauses of these Online Terms, Marketing List Data shall be processed by Provider solely on Client’s documented instructions and solely as necessary to provide the Services and for no other purpose, except to the extent required by applicable law. Provider shall not sell, share, rent, disclose, retain, use, combine, enrich, profile, target, monetize, or otherwise process Marketing List Data for Provider’s or any third party’s independent commercial purpose; for cross-context behavioral advertising; to create or augment marketing audiences; or outside the direct business relationship between Client and Provider. Provider shall not combine Marketing List Data with personal information obtained from or on behalf of another person, or with personal information collected from Provider’s own interactions with an individual, except as expressly permitted by applicable privacy law and authorized in writing by Client. Provider shall not include Marketing List Data in Aggregated Data except in fully de-identified or statistical form that cannot reasonably be used to identify, relate to, describe, or be linked, directly or indirectly, to an individual or household, and Provider shall not attempt to reidentify such information. Provider shall promptly notify Client if Provider determines that it can no longer meet its obligations under applicable privacy law or this Agreement, and Client may take reasonable and appropriate steps to stop and remediate any unauthorized use of Marketing List Data.
Opt-Out. The Client may opt out of (a) the use of Client Data to create Aggregated Data for purposes of externally published insights and benchmarks and the development and training of machine learning and artificial intelligence systems, and/or (b) the marketing and promotional uses described in these Online Terms, at any time by emailing optout@logicalposition.com from an email address associated with the Client’s account. The Provider will implement a valid opt-out request within thirty (30) days of receipt. An opt-out applies prospectively from the date it is implemented and does not require the Provider to retract, delete, or modify Aggregated Data already created, insights or benchmarks already published, models already trained, or marketing materials already produced or distributed prior to implementation. Notwithstanding the foregoing, nothing in this Opt-Out clause limits the Provider’s obligation to give effect to a verifiable consumer request or other data-subject request that the Provider is required to honor under applicable law, and the Provider shall action any such request within the timeframe and to the extent required by that law.
Survival. The Provider’s ownership of, and rights to use, Aggregated Data shall survive the expiration or termination of this Agreement for any reason.
Service Provider Obligations. To the extent the Provider processes personal information contained in Client Data (including email and SMS marketing lists) on the Client’s behalf to perform the Services, the Provider acts as a “service provider,” “processor,” or “contractor” as those terms are defined under applicable United States state privacy laws (including the California Consumer Privacy Act, as amended). With respect to such personal information, the Provider shall: (a) not sell or share the personal information; (b) not retain, use, or disclose the personal information for any purpose other than the specific business purpose of performing the Services, including for any commercial purpose of its own, or outside the direct business relationship between the Parties; (c) not combine the personal information with personal information received from or on behalf of any other person, except as permitted for a business purpose under applicable law; (d) comply with the applicable obligations under, and provide the same level of privacy protection as required by, such laws; (e) notify the Client if the Provider determines that it can no longer meet its obligations under this Clause; and (f) permit the Client, upon notice, to take reasonable and appropriate steps to stop and remediate any unauthorized use of the personal information. The Provider certifies that it understands and will comply with the restrictions in this Clause. For the avoidance of doubt, nothing in the License to Client Data or Aggregated Data clauses of these Online Terms authorizes the Provider to use personal information contained in marketing lists for its own purposes; the Provider’s rights under those Clauses attach only to data that meets the De-identification Standard in the De-identification Safeguards clause of these Online Terms.
Data Protection Roles; Data Processing Addendum. Where the EU or UK General Data Protection Regulation applies, the Provider acts as a processor to the extent it processes personal data solely to perform the Services on the Client’s documented instructions, and as an independent or joint controller to the extent it determines the purposes and means of processing, including any processing of Client Data for its own purposes under the Aggregated Data clause of these Online Terms. Where the Provider acts as a processor, the Parties shall enter into a data processing addendum meeting the requirements of Article 28 of the GDPR, which shall be incorporated into and form part of this Agreement and shall set out the subject matter, duration, nature, and purpose of the processing, the types of personal data and categories of data subjects, and the Provider’s obligations to: process personal data only on the Client’s documented instructions; impose confidentiality obligations on personnel; implement appropriate technical and organizational security measures; engage sub-processors only under equivalent written terms; assist the Client with data-subject requests and with the Client’s obligations under Articles 32 to 36 of the GDPR; and, at the Client’s election, delete or return personal data at the end of the Services. Each Party shall comply with the data-protection laws applicable to it in its respective role.
Cross-Border Transfers. Where performance of the Services involves the transfer of personal data from the European Economic Area, the United Kingdom, or Switzerland to the Provider or any sub-processor in a country not recognized as providing an adequate level of protection, the Parties shall put in place a lawful transfer mechanism required under applicable law, including the European Commission’s Standard Contractual Clauses and/or the United Kingdom International Data Transfer Agreement or Addendum, which shall be incorporated into the data processing addendum described in the Data Protection Roles clause of these Online Term.
Charges and Payment
Payment. The Client shall pay to the Provider all Charges incurred in connection with performance of the Services at Provider’s then current rates, unless otherwise specified in the Contract Documents. The Charges are specified in the Statement of Work and may consist of the following elements:
“One-Time Charge(s)”, a single, one-time Charge for some Services, as specified in the Statement of Work and invoiced on the Execution Date.
“Monthly Recurring Charge(s)”, a recurring, monthly Charge for some Services, as specified in the Statement of Work, invoiced on the Bill Date each month. The initial Monthly Recurring Charge for each applicable Service will be invoiced on the Execution Date and will cover the cost of that Service for the 1st month of the Term. Proceeding Monthly Recurring Charges will be invoiced one (1) month after the Execution Date, prior to the 2nd month of the Service, and then concurrently each proceeding month on the Bill Date.
“Semi-Annual Recurring Charge(s)”, a recurring, semi-annual Charge for some Services, as specified in the Statement of Work, invoiced on the Bill Date every six (6) months. The initial Semi-Annual Recurring Charge for each applicable Service will be invoiced on the Execution Date and will cover the cost of that Service for the initial six (6) months of the Term. Proceeding Semi-Annual Recurring Charges will be invoiced six (6) months after the Execution Date, prior to the 7th month of the Service, and then concurrently every six (6) months on the Bill Date.
“Annual Recurring Charge(s)”, a recurring, annual Charge for some Services, as specified in the Statement of Work, invoiced on the Bill Date every twelve (12) months. The initial Annual Recurring Charge for each applicable Service will be invoiced on the Execution Date and will cover the cost of that Service for the initial twelve (12) months of the Term. Proceeding Annual Recurring Charges will be invoiced twelve (12) months after the Execution Date, prior to the 2nd year of the Service, and then concurrently every twelve (12) months on the Bill Date.
“Reconciliation Charge(s)”, a monthly Charge applied to some Services which have Semi-Annual or Annual Monthly Recurring Charges. Reconciliation Charges are invoiced when a Client’s monthly Ad Spend exceeds the monthly Ad Spend range stated on the Statement of Work for that Service.
“One-Time Audit Charge(s)”, a single, one-time Charge for some Services, as specified in the Statement of Work, invoiced on the Execution Date.
Invoices. Provider shall submit emailed invoices to Client when Charges are due. All payments due shall be immediately charged. A monthly service charge of 1.5% may be applied on past due invoiced amounts where payment has not been received by the invoice due date. Payments by Client will be credited first to late payment charges and next to the unpaid balance. Provider reserves the right to withhold delivery and/or transfer of ownership of any current work if the current balance and Charges are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full.
Deposit. Upon execution of this Agreement, Client shall deliver payment to Provider in the amount specified in the Statement of Work as a deposit against future Charges. Provider may, at its option, set off any amount owing to or from Client under this Agreement or pursuant to any other agreement between the Parties against the deposit.
Ad Spend. The Client will be responsible for all Ad Spend associated with the Ad Platforms. Ad Spend will be billed directly by the Ad Platform and not the Provider. Ad Spend is determined by the Client, and Provider will only change target Ad Spend at request of the Client. Ad Spend may vary between each Bill Date and may exceed the target Ad Spend agreed to by the Parties due to Ad Platform overdelivery. The Client understands and acknowledges that Provider is not responsible for any additional Ad Spend that exceeds stated targets due to Ad Platform overdelivery. Pay-Per-Click Service, Paid Social Service, and Pinterest Service’s Monthly Recurring Charges will change to Provider’s then-current package pricing if Pay-Per-Click Service, Paid Social Service, or Pinterest Service’s respective monthly Ad Spend is no longer within the Ad Spend range indicated in the Statement of Work, regardless of any Ad Platform overdelivery. Services that have Ad Spend and are charged Semi-Annual Recurring Charges or Annual Recurring Charges will be reconciled each month on the Bill Date if the monthly Ad Spend for that Service is no longer within the monthly Ad Spend range indicated on the Statement of Work, either through applied credit to the Client’s account if the monthly Ad Spend for the applicable Service is lower than stated on the Statement of Work, or through a Reconciliation Charge if the monthly Ad Spend exceeds what is stated on the Statement of Work for that Service. Any lapse in Ad Spend payment for any reason, including but not limited to declined payment, will not be the responsibility of the Provider and will not result in the termination of this Agreement or the financial responsibilities of the Client. Current standard pricing for the Client’s Services and Ad Spend is available from the Client’s Account Manager upon request.
Warranties
IP Address Suspension. The Client understands and acknowledges that Provider is not responsible for actions taken against the Client’s IP address, and thus is not financially responsible to compensate Charges if the IP address is suspended by any email provider for policy violation.
Ad Platforms. The Client understands and acknowledges that: The ads on the Ad Platforms will rotate position on the Ad Platform’s search results page due to the highly competitive nature of online advertising and dynamic bidding platforms. Ads may come off the page if the Client’s daily budget is exceeded due to click volume. If the ads come off the page for the day, they will be back online at midnight the next day within the time zone specified in the Client’s Ad Platform settings. The Provider will be added as “first on record” where applicable on Ad Platforms to ensure all Services can be provided to the Client.
Website Suspension. The Client understands and acknowledges that Provider is not responsible for material found on Client’s Website that violates Ad Platform advertising policies and thus is not financially responsible for compensating or refunding Charges if the Website is suspended from the Ad Platform(s) for policy violations.
The Client understands and acknowledges that:
Ad Platforms and Performance. Each Ad Platform, search engine, marketplace, email or SMS provider, and similar third-party channel may modify, deprecate, or discontinue features, interfaces, policies, pricing, algorithms, or availability at any time without notice. The Provider has no control over such changes, which may affect the delivery, performance, rankings, deliverability, appearance, or measurement of any Service, and no such change constitutes a breach of this Agreement by the Provider. Results from any Service may take time to develop, may fluctuate, and may decrease as well as increase, notwithstanding the Services; promotion may also increase traffic, bandwidth, order volume, and related operational demands, which are the Client’s responsibility to support.
Provider does not warrant that any particular results will be achieved through the Services. Where the Provider indicates specific targets or objectives that Provider will attempt to meet through the provision of the Services, such targets are aspirational and are in no way guaranteed. Client understands and acknowledges this is an advertising service and there is no guarantee of success, results, financial gain, website traffic, or any other targets or objectives within any given timeframe. Failure to meet any such targets or objectives shall not constitute breach of this Agreement or entitle the Client to damages of any kind. Except for the express representations and warranties stated in this Agreement and/or the Contract Documents, Provider disclaims any and all warranties associated with the Services, either express or implied, including, without limitation, warranties of merchantability and/or fitness for a particular purpose.
The ads will run until the budget has been depleted due to standard engagement rates determined by the Ad Platform(s). If the Client wishes to have their ads continue to serve after their budget has depleted, they will be required to notify the Provider of an increase in Ad Spend. An increase in Ad Spend may result in an increase in Monthly Recurring Charges due by the Client in accordance with the Ad Spend clause of these Online Terms.
Google Analytics, Data Tracking, GDPR, TCPA, CCPA, CIPA, and HIPAA.
The Client understands and acknowledges that:
Provider is not responsible for any privacy violations that the Client might infringe on by not outlining data tracking policies in a privacy policy on Client’s website; and
The Client is responsible, as controller, for establishing a lawful basis for its collection and provision of Client Data and marketing lists, for providing all required privacy notices to, and obtaining all required consents from, data subjects, and for its own compliance with applicable data-protection laws, including the General Data Protection Regulation (“GDPR”) and the UK GDPR. The Provider is responsible for its own compliance with applicable data-protection laws with respect to processing it carries out for its own purposes, including the creation and commercialization of Aggregated Data and the training of analytical or artificial intelligence models. The allocation of data-protection roles and responsibilities between the Parties is further addressed in the Service Provider Obligations and Data Protection Roles clauses of these Online Terms.
Provider is not responsible for actions taken against Client for fines issued by the TCPA (Telephone Consumer Protection Act), and thus is not financially responsible to compensate fees if any TCPA fines occur for policy violation. It is the sole responsibility of the Client to be in compliance with any laws associated with the TCPA.
Provider is not responsible for actions taken against Client or Provider for violations of Tex. Bus. & Com. § 302.001 et seq., or other similar laws relating to SMS marketing. It is the sole responsibility of the Client to determine, satisfy, and maintain compliance with any requirements applicable to the Client, including those relating to registration with state agencies. In the event of a violation of Tex. Bus. & Com § 302.001 et seq, or similar law, by Client or Provider, Client shall indemnify, release, defend, and hold harmless Provider from, for, and against any and all claims for such violations, including but not limited to statutory penalties, damages, and reasonable attorney fees. Should a violation occur, in its sole discretion, Provider reserves the right to select and retain legal counsel of Provider’s choice to defend Provider in connection with any such violation, and the fees and costs of such legal counsel shall be paid by Client.
California Consumer Privacy Act (as amended). With respect to such personal information, the Provider shall: (a) not sell or share the personal information; (b) not retain, use, or disclose the personal information for any purpose other than the specific business purpose of performing the Services, including for any commercial purpose of its own, or outside the direct business relationship between the Parties; (c) not combine the personal information with personal information received from or on behalf of any other person, except as permitted for a business purpose under applicable law; (d) comply with the applicable obligations under, and provide the same level of privacy protection as required by, such laws; (e) notify the Client if the Provider determines that it can no longer meet its obligations under this Clause; and (f) permit the Client, upon notice, to take reasonable and appropriate steps to stop and remediate any unauthorized use of the personal information. The Provider certifies that it understands and will comply with the restrictions in this Clause. For the avoidance of doubt, nothing in the License to Client Data or Aggregated Data clauses of the Agreement authorizes the Provider to use personal information contained in marketing lists for its own purposes; the Provider’s rights under those Clauses attach only to data that meets the De-identification Standard in the De-identification Safeguards clause of these Online Terms.
The Client is solely responsible for its compliance with laws governing wiretapping, eavesdropping, call or session recording, website tracking, or consumer consent, including without limitation the California Invasion of Privacy Act and similar federal or state laws. The Client is solely responsible for providing, implementing, and maintaining all notices, disclosures, permissions, consents, opt-out mechanisms, and other consumer-choice mechanisms required in connection with Client’s use of the Services with respect to pixels, cookies, analytics, session recording, chat, and other tracking technologies implemented by the Provider at the Client’s direction. Provider is not responsible for Client’s failure to provide or maintain legally required notices, disclosures, consents, permissions, or consumer-choice mechanisms.
The Client is solely responsible for determining whether Client is a “covered entity” or “business associate” as those terms are defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (“HIPAA”) and for ensuring that its Website, tracking configuration, and use of the Services comply with HIPAA and related regulations and guidance. Unless the Client directs otherwise in writing by email in accordance with the Notice provisions for account and service changes, the Provider installs tracking and analytics technologies site-wide; the Client is solely responsible for identifying any pages, portals, or user flows on which tracking technologies must be excluded, restricted, or subject to consent, and for instructing the Provider accordingly. The Parties intend that Provider will not create, receive, maintain, or transmit Protected Health Information (“PHI”) on behalf of Client under the Agreement. Accordingly, the Client shall not provide, disclose, upload, transmit, or otherwise make PHI available to the Provider or to any Ad Platform through the Services. No business associate relationship is intended or created by this Agreement, and no business associate agreement is entered into or implied, unless the Parties execute a separate written business associate agreement signed by authorized representatives of both Parties. Provider makes no representation that the Services or any Ad Platform are suitable for use with PHI or compliant with HIPAA.
FeedLogic. This provision applies only if the Client uses the FeedLogic Service. The Client acknowledges and agrees that the Provider retains exclusive control over the FeedLogic Service and will not grant direct access, transfer, or hand off control of the FeedLogic Service to the Client at any point, including upon termination of this Agreement. During the Term, the Client may view and access FeedLogic data feeds solely through the applicable Ad Platforms where the FeedLogic Service is utilized. Upon termination of the FeedLogic Service, the Client is solely responsible for promptly removing all access, permissions, code installations, or any other rights granted to the Provider by the Client, including but not limited to access to the Client’s Website. The Client expressly acknowledges and agrees that the Provider shall not be responsible or liable for any damages, losses, or liabilities, including but not limited to financial, operational, or reputational harm, arising from or related to the Client’s failure to remove the Provider’s access or permissions. The Client further agrees to indemnify and hold the Provider harmless from any claims, damages, or losses resulting from the Client’s failure to comply with this obligation.
Term; Early Termination
Services are provided on one of the following bases: (a) one-time, (b) month-to-month, or (c) for a defined Term. If Client has agreed to a specific Term, Client must fulfill the entire Term. Services may not be paused during the Term. If Client terminates Services before the end of the Term, Provider shall be entitled to collect, as liquidated damages and not as a penalty, an amount equal to fifty percent (50%) of any remaining Monthly Recurring Charges contemplated by this Agreement and/or the Contract Documents (whether or not yet invoiced). Such amount shall be due and payable immediately upon termination. Client acknowledges that quantifying actual losses arising from early termination is inherently difficult because Provider may have allocated resources or made other business decisions in reliance on the full Term. Client further acknowledges that the early-termination payment required by this section is a reasonable pre-estimate of the damages Provider is likely to incur and is not a penalty. Provider will not refund any amounts already charged or paid.
Notice of Termination. All Services require a minimum of thirty (30) days prior notice of termination.
Data Retention; Informational Communications
Data Retention. Following expiration or termination of the Agreement for any reason, the Provider may retain Client Data for record-keeping, compliance, dispute resolution, analytics, and archival purposes, and may continue to use Client Data to create and maintain Aggregated Data, subject in each case to the De-identification Safeguards and the other applicable provisions of these Online Terms and the Agreement. Nothing in this provision limits the Provider’s obligations with respect to Marketing List Data or personal information under applicable law.
Informational Communications. The Provider may from time to time, in its sole discretion, share general information regarding legal, regulatory, industry, platform, or technology developments as a courtesy. Such information is provided for general awareness only, is not legal advice, and may not be complete, current, or applicable to the Client’s circumstances. The Provider assumes no duty to monitor legal or regulatory developments or to advise the Client regarding them, and no communication of such information creates any such duty. Any reference to a third-party product or service is not an endorsement, recommendation, or warranty, and the Provider is not responsible for any third party’s products or services. The Client is solely responsible for its own legal compliance and should consult its own qualified legal counsel and other appropriate advisors.
Miscellaneous Additional Provisions
Attorney Fees/Costs. In the event that a suit, action, arbitration, or other legal proceeding of any nature whatsoever is brought relating to this Agreement and/or the Contract Documents, or any of the rights or obligations under this Agreement and/or the Contract Documents, the prevailing party shall be entitled to recover from the losing party its reasonable attorney, paralegal, and other professional fees, as well as any and all other fees, costs, and expenses of any kind actually incurred and reasonably necessary in connection herewith, as determined by the judge or arbitrator at trial or other proceeding, and including such fees, costs, and expenses incurred in any appellate or review proceeding, or in collecting any judgment or award, or enforcing any decree rendered with respect thereto, in addition to all other amounts provided for by law.
Binding Effect. The terms and conditions of this Agreement shall apply to and bind the successors and permitted assigns of the parties hereto.
Captions. All captions, titles, headings, and divisions are for purposes of reference and convenience only and may not be construed to limit or otherwise affect interpretation of this Agreement.
Choice of Law. This Agreement is governed by and should be construed in accordance with the laws of the State of Oregon.
Collection Expenses. Upon written demand, Client shall compensate Provider for all reasonable costs and expenses of any kind, including, but not limited to, attorney, paralegal, and other professional fees, actually incurred and reasonably necessary in connection with any collection efforts by Provider to enforce any provision of this Agreement which take place outside of suit, action, arbitration, or other legal proceeding.
Conflicts. Any orders, change orders, notices, or other similar documents required or permitted under this Agreement shall be governed by the terms of this Agreement. Any term or condition set forth in such document that is inconsistent with or in addition to the terms and conditions of this Agreement shall have no force or effect.
Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original, and all of which together will constitute one and the same instrument. If executed in two or more counterparts, this Agreement will be binding upon the exchange of facsimile or other electronic copies of the signature pages from each of the separately signed originals. Facsimile or other electronically copied signatures will be deemed to be originals for all purposes and will have the same force and effect as original signatures.
Further Assurances. Each of the parties shall, upon request of the other party, execute and deliver such additional documents as may be necessary or convenient for the purpose of evidencing or perfecting any rights or interests arising hereunder or in connection with any other documents executed in accordance with this Agreement.
Merger. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and supersedes any and all prior or contemporaneous agreements, understandings, negotiations and discussions, whether written or oral, of the parties in connection with the subject matter hereof, except as specifically set forth herein. No supplements, modifications, waivers, or terminations of this Agreement shall be binding unless executed in a writing signed by the parties to be bound thereby.
Notice. Any formal legal notice required or permitted under this Agreement or the Contract Documents (including notices of breach, indemnification claims, or other formal legal communications) shall be in writing and shall not be effective until actually delivered to the receiving Party at its registered office (or such other physical address as that Party may designate in writing). All other notices, including but not limited to notices regarding account changes, service modifications, and billing matters, may be given by email to the email address(es) designated by the receiving Party or verbally. Email notices shall be deemed effective upon transmission (provided no delivery failure notification is received). Verbal notices shall be deemed effective when given. Notwithstanding the foregoing, any notice of termination of Services given by Client (whether by email or verbally) shall not be effective until Provider issues written notification confirming that the Services have been terminated. Termination shall be effective as of the date stated in Provider’s written notification. Either Party may update its notice addresses or contact details by providing notice to the other Party in accordance with this section.
Remedies. Remedies provided by this Agreement are cumulative and not exclusive. Client is entitled to pursue any and all other or additional remedies provided at law or in equity.
Set off. Provider, including any component of Provider and/or any of Provider’s affiliated entities, shall have the right at all times to set off any amount owing to or from Client under this Agreement or pursuant to any other agreement between the Parties.
Severability. If any provision of this Agreement becomes or is found to be illegal, unenforceable, void, or voidable, then such clause or provision shall be modified to the extent necessary to make this Agreement legal and enforceable. If modification of such provision is not possible, then it shall be severed from the remainder of this Agreement so that the remainder of this Agreement may remain in full force and effect.
Time is of the Essence. Time is of the essence with respect to any and all provisions in this Agreement and/or the Contract Documents which specify a time for performance.
Venue, Jurisdiction. Any action, suit, or proceeding arising out of or relating to this Agreement, including its breach, termination, enforcement, interpretation, or validity, may be brought only in the United States District Court for the District of Oregon or the Circuit Court of the State of Oregon for Clackamas County. Each party irrevocably submits to the personal jurisdiction of those courts and waives any objection based on improper venue, inconvenient forum, or lack of personal jurisdiction, to the extent permitted by applicable law.
Waiver. No waiver of any provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision herein, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
Non-Solicit. During the period beginning on the date hereof and ending one year after termination of Services, neither Party will, directly or indirectly, solicit to employ or hire any employee of the other Party unless the other Party first terminates the employment of such employee, such employee voluntarily terminates without inducement, or the other Party gives its written consent to such employment or offer of employment. The restrictions set forth herein shall not apply in the event either Party makes a job posting available to the general public and an employee of either Party applies for such job without prior solicitation.
Additional Charges. This provision applies only to ecommerce Clients whose campaigns require a product data feed. Provider may recommend and/or provide data feed management or FeedLogic Service as a condition to run shopping, remarketing, Email Marketing, or SMS Marketing campaigns. Additional Service is only required as a prerequisite if Client is not currently utilizing a sustainable feed integration. This pertains to Google Merchant Center, Facebook Advertising, Microsoft Merchant Center, or other product feed-based platforms and services required by the Ad Platform. Pricing may vary and will be quoted pending total SKUs on Client’s ecommerce platform. Restrictions and limitations may apply. Not all website platforms are compatible.
Mutual Indemnification. Subject to the limitations of liability set forth in this Agreement, including but not limited to the Provider’s total cumulative liability cap, each Party shall defend indemnify and hold harmless the other Party, including affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all claims of third parties, and all associated losses, to the extent arising out of (a) a Party’s gross negligence or willful misconduct in performing any of its obligations under this Agreement, or (b) a material breach by a party of any of its representations, warranties, covenants or agreements under this Agreement.