ONLINE MARKETING SERVICES TERMS AND CONDITIONS
Park Digital Marketing, Inc. ("Park DMC")
provides a range of marketing products and services for local businesses (the "Marketing Services"). The Contract (the "Client Contract") sets forth which Marketing Services are being purchased by the client who signed the Client Contract ("you" or "Client"), the costs for such Marketing Services, and other relevant details. These Online Marketing Services Terms and Conditions ("Marketing Services Terms") are incorporated by reference into and made a part of any Client Contract submitted to Park Digital Marketing and govern the relationship between you and Park Digital Marketing. These Marketing Services Terms also apply to any Marketing Services you may sign-up for without a Client Contract, such as verbal agreement or other limited-time offers. All Client Contracts are subject to acceptance by Park Digital Marketing, in its sole discretion. The Client Contract, the Marketing Services Terms, and the documents and/or links referenced in such documents are together referred to as the "Agreement."
If you are accepting on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to this Agreement, (ii) you have read and understand this Agreement and (iii) you agree, on behalf of the Client, to this Agreement.
Marketing Services. The Marketing Services include, but are not limited to, the following products:
• Website Development
• Search Engine Optimization
• Inbound Marketing
• Video Marketing
• Branding Packages
• Targeted Email Marketing
a. Identification of Fees.
You agree to pay the amounts set forth in the Client Contract. The Fees are generally divided into product fees, service fees and set-up fees. Product fees are the recurring fees that you will be charged for the specific product you have purchased as shown on the Client Contract. Service fees are for the delivery of any premium services that Park Digital Marketing may, from time to time, offer. Set-up fees are one-time fees for the set-up of campaigns or other services. Park Digital Marketing reserves the right to change any of the Fees at any time with a verbal and/or written agreement.
b. Promotional Offer.
If Park Digital Marketing offers any special promotions that provide you with credits or other incentives in connection with purchasing Marketing Services (the "Promotional Offer"), and you cancel one or more of the Marketing Services prior to completion of the Initial Term (other than for cause, as set forth below), then in addition to any other cancellation penalties you may be subject to, you will be required to repay to Park Digital Marketing the full amount of the Promotional Offer(s).
2. Payment Terms.
General. Once a Client Contract has been accepted by Park Digital Marketing, you will be responsible for payment in full of all Fees, except when otherwise stated.
a. Manner of Payment.
You shall pay for all amounts payable under this Agreement either by credit card (the "Client Card"), ACH (electronic debit from your bank account) or such other form of payment as Park Digital Marketing may, in its sole discretion, permit. You will be required to agree to the applicable payment authorization form(s), which also permit Park Digital Marketing to recover any Promotional Credits (as set forth above) and collect any Cancellation Fees (as defined below) in the authorized manner.
b. Timing of Payment.
Fees, as identified on the Client Contract, are due in advance of services being rendered. If there are Set-Up Fees (as set forth on the Client Contract), such Fees shall be paid in advance together with all amounts owed for the initial Product Fee. Park Digital Marketing shall have the right to charge the Client Card or debit from your account through ACH for Fees in accordance with these Marketing Services Terms and the Product Terms. You understand and acknowledge that all amounts owed must be paid in advance and that, in addition to being in breach of your contractual obligations, your campaign or service may be paused or terminated if timely payment is not received.
Term. The Agreement shall commence upon execution of a Client Contract and, unless otherwise provided in the Terms, shall continue until cancelled in accordance with the terms of this Agreement.
Unless otherwise provided in the Product Terms, you may cancel any Marketing Service at any time and for any reason.
i. If you have not completed the Initial Term set forth on the Client Contract, cancellation will be effective at the completion of the Initial Term.
ii. If you have completed the Initial Term, cancellation will be effective at the completion of 60 days after Park Digital Marketing’s receipt of your Cancellation Request
Park Digital Marketing may cancel at any time for any reason on written notice to you (which may be provided by email) upon the conclusion of a Cycle.
b. Cancellation Fee.
Unless otherwise provided in the Product Terms, if you wish to cancel any Marketing Service immediately without completing the applicable term described above, you may do so, but you will have to pay a cancellation fee equal to 50% of any unpaid portion of such Marketing Service's term (the "Cancellation Fee").
Park Digital Marketing may, consistent with established payment practices, charge the Client Card or shall be permitted to cause payment to be made through ACH for the Cancellation Fee or Park Digital Marketing may invoice you for the Cancellation Fee, which invoice must be paid within seven (7) business days after the invoice date. No cancellation of a Client Contract under this section shall take effect until the Cancellation Fee has been paid, meaning that Park Digital Marketing may continue the campaign, and you shall continue to be obligated to pay for the campaign in accordance with the terms of this Agreement. You acknowledge that the Cancellation Fee is not a penalty, but rather is a reasonable amount of liquidated damages to compensate Park Digital Marketing for your early cancellation of Marketing Services.
c. Cancellation Revocation.
You may, upon written notice to Park Digital Marketing (email is acceptable) revoke such termination within 30 days after you have made a Cancellation Request, in which case the Client Contract will be reinstated and all applicable campaigns, if they had been stopped, will be re-initiated upon payment in full of all amounts owed. If the Cancellation Fee has already been paid, it shall be applied to the amount owing on the Client Contract.
d. Park Digital Marketing Creative Services.
Except as may be otherwise provided, if you request that Park Digital Marketing provide any creative services, you will remain fully responsible for any content you provide to Park Digital Marketing. With respect to any content created by Park Digital Marketing, as between you and Park Digital Marketing, Park Digital Marketing shall retain ownership of the design elements of such content, excluding any of your trade names, trademarks, service marks or logos or other proprietary elements that may be included within such content, but that predate the creation of the content.
4. Your Representations, Warranties and Covenants.
You represent and warrant that you have all necessary rights and authority to enter into the relationship with Park Digital Marketing contemplated by the Agreement. You represent, warrant and covenant that the Existing Site, any content linked to the Existing Site and any content or materials that you provide to Park Digital Marketing, do not and will not: (a) infringe on any third party's copyright, patent, trademark, trade secret, moral right or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false or misleading advertising or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. You further represent, warrant and covenant that the product or service that is being (or will be) promoted through any campaign is (i) lawful and (ii) not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities.
You will indemnify, defend (with counsel reasonably acceptable to Park Digital Marketing) and hold harmless Park Digital Marketing, the Publishers, their subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents and employees and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys' fees and expenses) incurred in connection with any claim, action or proceedings.
Except as may be required by applicable law, you shall not disclose the contents of the Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without Park Digital Marketing's prior written consent. Except as otherwise expressly herein permitted, no party may issue a press release concerning the existence or terms of the Agreement without the prior written consent of the other party. In addition, except as may be required by applicable law, you may not disclose any Confidential Information regarding Park Digital Marketing. "Confidential Information" means information about Park Digital Marketing's (or its suppliers') business, products, technologies (including the Platform), strategies, financial information, operations or activities that is proprietary and confidential, including without limitation all business, financial, technical and other information disclosed by Park Digital Marketing. Confidential Information will not include information that you can establish is in or enters the public domain without breach of these confidentiality obligations.
7. DISCLAIMER OF WARRANTIES.
PARK DIGITAL MARKETING PROVIDES ALL MARKETING SERVICES PERFORMED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE MARKETING SERVICES ARE INTERRUPTED OR DELAYED, PARK DIGITAL MARKETING'S SOLE OBLIGATION WILL BE TO RESTORE SUCH SERVICES AS SOON AS PRACTICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PARK DIGITAL MARKETING DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. PARK DIGITAL MARKETING WILL HAVE NO LIABILITY FOR ANY: ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; CLAIMS RELATING TO INFRINGEMENT OF ANY THIRD PARTY'S INTELLECTUAL PROPERTY (OTHER THAN BY THE PLATFORM) OR DEFAMATION; PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF ANY OF THE MARKETING SERVICES; UNAUTHORIZED ACCESS TO OR USE OF PARK DIGITAL MARKETING'S SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (v) INTERRUPTION OF TRANSMISSION TO OR FROM THE MARKETING SERVICES; (vi) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE MARKETING SERVICES BY ANY THIRD PARTY; (vii) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE MARKETING SERVICES; OR (viii) MATTERS BEYOND PARK DIGITAL MARKETING'S REASONABLE CONTROL. PARK DIGITAL MARKETING DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE OFFERINGS OR ANY LINKED WEB SITE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PARK DIGITAL MARKETING OR THROUGH THE MARKETING SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE MARKETING SERVICES TERMS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PARK DIGITAL MARKETING MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY CAMPAIGN OR ANY PRODUCT OR SERVICE
8. LIMITATIONS OF LIABILITY.
NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING EXCLUSION OF LIABILITY WILL NOT APPLY TO (I) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS, INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION THEREWITH; (II) TO YOUR CONFIDENTIALITY OBLIGATIONS; AND/OR (III) EITHER PARTY'S WILLFUL MISCONDUCT.
a. LIMITATION ON DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL PARK DIGITAL MARKETING'S CUMULATIVE, AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE AMOUNTS RECEIVED BY PARK DIGITAL MARKETING FROM YOU DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. IN LIEU OF REFUND, PARK DIGITAL MARKETING SHALL BE PERMITTED, IN ITS SOLE DISCRETION, TO PROVIDE "MAKE-GOOD" MARKETING SERVICES, PROVIDED SUCH "MAKE-GOOD" MARKETING SERVICES ARE PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent Park Digital Marketing may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Park Digital Marketing's liability will be the minimum permitted under such law.
Each party acknowledges that the other party has entered into the Client Contract in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
9. Third Party Beneficiaries.
You understand and acknowledge that the Publishers are intended third-party beneficiaries of Sections 7, 8, 9 and 13.
10. Dispute Resolution
Informal Dispute Resolution. Except for any controversy or claim relating to an Intellectual Property Right (as defined below in Section 15(c)), the parties agree that with respect to any matters, disputes, or claims between Client and Park Digital Marketing arising from or related to this Agreement or the parties’ relationship, Park Digital Marketing and Client shall negotiate in good faith to informally resolve the problem or dispute. If the problem or dispute is not resolved satisfactorily within 60 days after Park Digital Marketing or Client receives notice in accordance with Section 16(d) (if Park Digital Marketing), or to the address identified on the Client Contract (if Client), either party can submit the dispute to binding arbitration in accordance with this arbitration provision.
Except for any controversy or claim (1) relating to the ownership by either party of any Intellectual Property Rights (as defined below in Section 15(c)), or (2) properly filed and pursued in small claims court on an individual basis, any claim, dispute or controversy between the parties arising from or relating to this Agreement or the relationships which result from this Agreement that remain unresolved after the parties attempt to informally resolve such claim, dispute or controversy shall be resolved by binding arbitration brought on an individual basis as a “Common Claim” before the National Arbitration Forum (NAF) pursuant to the Code of Procedure then in effect (or such other arbitration provider as is mutually-agreeable to the parties) in a manner consistent with the terms in this Agreement. Parties shall submit all available documents that support their claims, counterclaims or defenses at the time of submission of the initial claim or response thereto. Formal discovery will only be permitted upon a showing of good cause and subject to the arbitrator’s approval. The arbitration shall take place in the state and county in which Client is located or in Los Angeles, California, in accordance with the initiating party’s (“Claimant’s”) preference. The Client and Park Digital Marketing shall each pay their own arbitration and hearing fees, costs, and expenses, including but not limited to fees, costs and expenses for attorneys, experts, discovery, and witnesses (as applicable). The arbitration shall be conducted by a single arbitrator. The arbitration may be held by telephone or by written submissions if Client and Park Digital Marketing so elect. The arbitrator shall issue a written award. Any award of the arbitrator may be entered as a judgment in any court having jurisdiction. Information may be obtained at www.adrforum.comand claims may be filed electronically at email@example.com. After an arbitration is commenced, if the Claimant makes a written offer of settlement that is rejected by the other party (“Respondent”), and Claimant is the prevailing party in arbitration and recovers an amount equal to or greater than Claimant’s offer of settlement, Claimant shall recover his, her or its reasonable attorneys’ fees and expenses incurred in investigating, preparing for, and pursuing a claim in arbitration up to $25,000. After an arbitration is commenced, if the Respondent makes a written offer of settlement that is rejected by the Claimant, and Claimant either does not prevail in arbitration or does not recover more in the arbitration than Respondent’s offer of settlement (exclusive of attorneys’ fees or costs awarded to Claimant by the arbitrator), then Respondent shall recover his, her or its reasonable attorneys’ fees and expenses incurred in investigating, preparing for, and defending the claim in arbitration up to $25,000. This agreement to arbitrate shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.
This agreement to arbitrate does not apply to any of the following: (1) any claim, action or proceeding arising out of or relating to a patent, copyright, trademark, or trade secret right of Client, Park Digital Marketing or any affected third party (collectively, “Intellectual Property Rights”); or (2) claims filed on an individual basis in small claims court properly within that court’s jurisdiction and proceeding on an individual (non-class) basis. The parties expressly agree that arbitration shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class-action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between Client and Park Digital Marketing. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provision in this Agreement, if any portion of this “Exceptions” provision is deemed invalid or unenforceable, then the entire Dispute Resolution Provision (other than this sentence) shall not apply. If a party improperly brings a claim, action or proceeding in a court of law that is properly arbitrable in accordance with Section 15(b), or brings a claim, action or proceeding in arbitration that is not properly arbitrable based on the exceptions identified in this Section 15(c), the other party may seek relief in a court located in the jurisdiction in which the underlying action was commenced and, if prevailing, shall be entitled to his, her or its reasonable attorneys’ fees and costs.
Park Digital Marketing reserves the right to amend this arbitration provision at any time and will notify Client of such amendments. Client’s continued use of the services after receiving notice of any changes to this Section 15 is affirmation of Client’s consent to such changes.
Advertiser shall have the right to opt-out of this arbitration provision by sending an email to optoutnotice@Park Digital Marketing.com or by U.S. Mail, postage prepaid, to Park Digital Marketing, Inc., 21700 Oxnard St., Suite 1600, Woodland Hills, California, 91367, Attention: Office of the Chief Legal Officer within 30 days of signing the first Client Contract with Park Digital Marketing or receipt of any notification of changes to this agreement to arbitrate. Any opt-out received after 30 days shall be ineffective and this arbitration provision shall remain in full force and effect.
e. Voluntary and Knowing Waiver.
BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND NOT IN ANY REPRESENTATIVE CAPACITY. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST
1. Governing Law.
The Agreement will be governed and construed in accordance with the laws of the State of California without giving effect to conflict of laws principles.
a. Timing of Claims.
You agree that, regardless of any statute or law to the contrary, the dispute resolution process identified in Section 15 applicable to any claim, dispute or controversy arising out of or related to the Agreement must be commenced within one year after such claim or cause of action arose or be forever barred; provided that this section shall not in any way limit the time in which claims for infringement or misappropriation of Intellectual Property Rights may be brought.
b. Entire Agreement.
The Agreement (which includes the Client Contract, all applicable Product Terms and any payment authorization forms) sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. It may be changed only by a writing signed by both parties. With respect to changes to Client Contracts then in effect, such writing may include email, provided that such changes are limited to a change in the term of the Client Contract or the amounts being paid under the Client Contract.
Any written notices to Park Digital Marketing required under the Agreement shall be provided by registered mail with proof of delivery to Park Digital Marketing's then current corporate headquarters address (as shown on www.Park Digital Marketing.com), Attn: Office of the Chief Legal Officer and by email to notices@Park Digital Marketing.com. Notices shall be deemed delivered 72 hours after posted in the mail.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
You may not assign any Client Contract or the Agreement without the prior written consent of Park Digital Marketing. The parties' rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns.
f. Independent Contractors.
The parties to the Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by the Agreement.
g. Third-Party Services.
Some of the Marketing Services may incorporate third-party products and services and Park Digital Marketing may do so without your consent, provided that Park Digital Marketing remains primarily liable for the performance of its obligations to you.
You acknowledge that Park Digital Marketing may provide incentives to third parties to introduce potential clients to Park Digital Marketing or to direct Park Digital Marketing to potential clients.
i. Force Majeure.
Neither party shall have any liability for any failure or delay (other than with respect to payment obligations) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or inventory shortage, unavailability of currency, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
j. International Sale of Goods; Exports.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. Park Digital Marketing software is controlled by U.S. Export Regulations, and it may not be exported to or used by embargoed countries or individuals.