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Customer retains all rights to Customer Content to the extent provided by law. PowerSites Media will retain all rights, title and interest in PowerSites Media provided URL, call tracking number, video slideshow, stock content, all methodologies, knowhow, processes, technologies, software (including related source code, object code and documentation, tools, devices, computer system designs, documentation, ideas, trade secrets, data, discoveries or inventions (whether or not patentable), products, user interfaces, database structure and other materials and information utilized by PowerSites Media, in the performance of its services under this Agreement or in connection with the Digital Services. PowerSites Media’s ownership includes, without limitation, the Website itself (excluding Customer Content).
You hereby represent and warrant to PowerSites Media that (a) you own all rights, title and interest in and to the Customer Content, or that you otherwise have the right to use such Customer Content and to grant PowerSites Media a license to use such Customer Content; (b) the Customer Content does not and will not infringe, violate or misappropriate the rights, property or privacy or rights of personality of any third party, (c) shall be free of viruses, worms, Trojan horses, spyware and other malicious code; (d) shall be compliant with all applicable laws; and (e) represent and warrant that, if you are an individual, you are 18 years old or older or, if you are an entity, that you are a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing and licensed if required where conducting business with all legal authority and power to enter into and you are authorized to enter into this Agreement. You further warrant and represent that your use of the Digital Services and all related features will at all times comply and be carried out in compliance with all applicable federal, state and other jurisdictional laws, regulations, statutes and governmental rules. Prohibited Uses: Customer represents and warrants that it will not (or permit others) to post, transmit, retransmit or store material on or through the assets which: (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity, (iii) violates any right of privacy or right of personality, violates any federal fair housing regulations, or (iv) violates the rights of any person or entity, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other software products or content that are not appropriately licensed by Customer. PowerSites Media, in its sole judgment, may remove any content that it deems is or may be inconsistent with these requirements. PowerSites Media has no obligation to design, develop, host, market or advertise any assets containing content that in PowerSites Media’s sole judgment is offensive, inappropriate or unlawful, including, without limitation, any “adult content,” content promoting violence of any kind, including any intolerance for race, lifestyle, or faith, and/or that constitutes terrorist threats, harassment, hate, defamation, libel, slander or otherwise violates or infringes the rights of any third party, or that is unlawful, deceptive or misleading or promotes the commission of a crime or any unlawful conduct. PowerSites Media shall have the right, in its sole discretion, to refuse and/or terminate this Agreement and any related services and may refuse to do business with any person or entity without liability and without explanation.
Customer agrees to indemnify and hold harmless, PowerSites Media and subsidiaries and affiliates, and their respective employees, directors, shareholders, members, officers, agents, from any and all claims, allegations, losses, damages, liabilities and expenses (including attorneys’ fees) actually or allegedly related to or arising out of your use of the Digital Services, including, without limitation: (a) any breach of your warranties, representations, obligations or the terms of this Agreement; (b) the Customer Content, including, without limitation, any claims of any infringement, or, misappropriation of the Customer Content; (c) claims that the Customer Content violates the rights of any third party, including, without limitation, any intellectual property rights (unless such violation is attributable solely to PowerSites Media provided content or technology) or any privacy right or right of personality; and (d) any claims made by any third parties (including customers of Customer) related to allegations of false advertising, coupons, promotions or relating to any information, materials, products or services provided by Customer through the Digital Services or otherwise.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY APPLICABLE LAW ALL DIGITAL SERVICES, INCLUDING BUT NOT LIMITED TO, ANY SAMPLE PRIVACY POLICIES PROVIDED BY POWERSITES MEDIA ARE PROVIDED ON AN “AS IS” AND “AS PROVIDED” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO AVAILABILITY OF THE WEBSITE OR SERVICES, COMPLETENESS, ACCURACY OR TIMELINESS OF INFORMATION, NON-INFRINGEMENT, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, AND SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY POWERSITES MEDIA. POWERSITES MEDIA MAKES NO WARRANTIES EXPRESS OR IMPLIED REGARDING ITS SEM OFFERING, INCLUDING BUT NOT LIMITED TO THE EXTENT OF ANY INCREASED WEB TRAFFIC THAT MAY OR MAY NOT RESULT FROM SUCH SERVICES.
NEITHER POWERSITES MEDIA NOR ITS EMPLOYEES, CONTRACTORS, VENDORS, AFFILIATES AND/ OR LICENSORS SHALL BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH ANY ACTION OR OMISSION IN CONNECTION WITH THIS AGREEMENT OR OUT OF ANY BREACH OF ANY WARRANTY, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF POWERSITES MEDIA OR ITS EMPLOYEES, CONTRACTORS, VENDORS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF POWERSITES MEDIA, ITS EMPLOYEES, CONTRACTORS, VENDORS AND/ OR LICENSORS AND YOUR EXCLUSIVE REMEDY IN CONNECTION WITH ANY SERVICES OR ANY BREACH OF THIS AGREEMENT IS LIMITED TO ANY AMOUNTS ACTUALLY PAID BY YOU TO POWERSITES MEDIA DURING THE TWELVE-MONTH PERIOD PRIOR TO THE CLAIM.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. POWERSITES MEDIA DOES NOT REPRESENT THAT THE HOSTING SERVICES, ACCESS TO THE ASSETS OR FUNCTION OF THE DIGITAL SERVICES WILL BE UNINTERRUPTED OR ERROR, BUG OR VIRUS FREE AND NEITHER POWERSITES MEDIA NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY LOST OR CORRUPTED DATA. PROCESSING ERRORS, COMMUNICATIONS DIFFICULTIES, AND/OR ANY INTERRUPTION AND OR FAILURE OF DELIVERY OF ANY OF THE SERVICES OFFERED BY POWERSITES MEDIA. POWERSITES MEDIA SHALL NOT BE RESPONSIBLE FOR ANY ALTERATIONS, MODIFICATIONS, DELETIONS AND THE LIKE TO THE WEBSITE OR SERVICES. IN NO EVENT SHALL POWERSITES MEDIA (OR ITS OWNER, DIRECTORS, OFFICERS, AGENTS, AFFILIATES AND EMPLOYEES) BE LIABLE FOR ANY CUSTOMER CONTENT OR ANY OTHER WORD OR IMAGE PRODUCED FOR THE CUSTOMER, OR ASSOCIATED WITH THE CUSTOMER OR THE CUSTOMER’S BUSINESS.
POWERSITES MEDIA SHALL NOT BE RESPONSIBLE FOR (A) UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, (B) ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR (C) ANY TRANSACTIONS ENTERED INTO THROUGH ANY SERVICE OR WEBSITE PROVIDED BY POWERSITES MEDIA HEREUNDER. POWERSITES MEDIA IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY ON OR THROUGH ANY WEBSITE PROVIDED BY POWERSITES MEDIA HEREUNDER OR ANY INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANOTHER’S RIGHTS BY A THIRD PARTY, INCLUDING INTELLECTUAL PROPERTY RIGHTS. YOU SPECIFICALLY AGREE THAT POWERSITES MEDIA IS NOT RESPONSIBLE FOR ANY CONTENT SENT, PROVIDED OR POSTED BY YOU OR ANY THIRD PARTY INCLUDING BUT NOT LIMITED TO ANY LINKS TO THIRD PARTY MATERIAL.
Each party may receive or have access to commercially or personally valuable technical and non-technical confidential or proprietary information (“Confidential Information”) of the other party. Confidential Information of Customer includes its registration and financial information. Confidential Information of PowerSites Media includes all business and technical information that is not generally known or available to others. Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. Notwithstanding the foregoing, the confidentiality obligations set forth herein shall not apply to any portion of any information which: (a) is now in the public domain, or hereafter enters the public domain through no action of the receiving party or any of its representatives; (b) can be shown to have been known to the receiving party or its representatives at the time it is received; (c) is hereafter rightfully furnished to the receiving party by a third party without violation of any restriction on disclosure; or (d) is independently developed by the receiving party without reference to any Confidential Information of the other party. The recipient acknowledges that the information disclosed may constitute proprietary information and trade secrets of the disclosing party. In the event of wrongful disclosure, monetary damages may be insufficient to protect and compensate the disclosing party and it shall be entitled to injunctive relief. This Section 13 regarding Confidentiality shall survive expiration or termination of this Agreement.
In performing Services for the Customer under this Agreement and all Schedules, PowerSites Media is acting at all times as an independent contractor and not as an agent or employee of the Customer. Neither this Agreement nor any Schedule shall be deemed to constitute a partnership or joint venture arrangement between PowerSites Media and Customer.
Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or In performing Services for the Customer under this Agreement and all Schedules, PowerSites Media is acting at all times as an independent contractor and not as an agent or employee of the Customer. Neither this Agreement nor any Schedule shall be deemed to constitute a partnership or joint venture arrangement between PowerSites Media and Customer.
This Agreement shall be governed by the laws of the State of California without giving effect to principles of conflict of laws. Any action to enforce this Agreement or any matter relating to your use of the Digital Services shall be brought exclusively in the State and Federal Courts located in Los Angeles County, California and customer agrees to such jurisdiction and venue. This Agreement, including any orders integrated herewith from time to time shall be the entire agreement and understanding between the parties in connection with the subject matter hereof. This Agreement supersedes and replaces all prior agreements, terms or conditions between the parties and any other oral or written communications as they pertain to this Agreement.
In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. The failure of PowerSites Media to insist upon or enforce strict performance by Customer, of any provision of this Agreement shall not be construed as a waiver or relinquishment of its right to enforce any such provision or right in any other instance. You may not assign or transfer this Agreement or any rights hereunder without PowerSites Media’s prior written consent, and any attempt to the contrary is void. The terms and conditions set forth in this Agreement are subject to updates from time to time by PowerSites Media. In the event of an update, Customer will be provided with notice of the update in advance whenever possible via email sent to the email address provided by Customer above. All changes or updates to this Agreement will take effect no sooner than five (5) days of sending the email (unless a change is required as a result of applicable laws, regulations, or required software update in which case, the change may be effective immediately). If Customer does not agree to the changes, Customer may terminate the Agreement by providing notice to PowerSites Media as indicated in Agreement.
Definition of terms as used herein:
“Digital Services” refers to all services that PowerSites Media may provide to Customer in association with this Agreement.
“PowerSites®” refers to an all-inclusive Website hosting, creation, maintenance and marketing service that help clients establish their brand, promote their business, track leads, and measure success.
“Website” refers to the Customer’s specific Website (including but not limited to all features, web pages, functionality, URLs, and any software code), that is created, designed, hosted and maintained by PowerSites Media as part of the PowerSites® service.
“SEM” refers to the full-service management of the Customer’s paid search advertising campaigns on Google, Yahoo!, and/or Bing search engines and associated digital content networks on all desktop and mobile devices.
“Mobile Advertising” refers to the full-service management of the Customer’s interactive advertising campaigns served to a network of mobile applications and Websites targeted to a specific DMA, geography, or custom geo-fence.
“Display Advertising” refers to the full-service management of the Customer’s interactive advertising campaigns served to a network of Websites targeted based on content, demographics, and geographies.
“Campaign” refers to the Customer’s specific advertisements and associated keywords, landing pages, or other content created and managed by PowerSites Media as part of the SEM, Mobile Advertising, or Display Advertising services.
