Pitch Black Media, LLC (“Pitch Black”) provides certain web-based marketing and analytic services including providing SEO local listing services, Google-based website analytics and advertising services through its websites including, but not limited to, gofindable.com (the “Pitch Black Site(s)”), and through other websites or mobile applications that Pitch Black owns, operates or administers (collectively, the “Websites”) on behalf of third parties.
Users of the Websites include persons or entities that register through the Pitch Black Site(s), as well as their affiliates, successors or assigns (the “Client(s)”), who in turn own, operate and manage their own websites or mobile applications (the “Client Site(s)”), but engage Pitch Black to provide certain selected services on behalf of the Client with respect to the Client Site(s) including, but not limited to, the collection and analyzing of data generated by third-party visitors to the Client Site(s) (the “Client Site Visitor(s)”) and how the Client Site Visitor(s) interact with the Client Site(s).
ACCOUNT REGISTRATION REQUIREMENTS
1.1 Account Registration. The Client shall be required to create an online account and register through the appropriate Pitch Black Site(s) (“Client Account”) in order to access and receive Pitch Black’s web-based subscription services (“Subscription Services”). The Client is responsible for providing complete and accurate information in registering the Client Account. The Client shall ensure that the information is updated as may be necessary throughout the Term. Failure to timely update the Client Account may result in the disruption of the Subscription Services to be provided by Pitch Black. Pitch Black may, in its sole discretion, and with or without notice, suspend and/or remove a Client Account if the Client Account is not timely updated. Pitch Black shall not liable to any Client for damages, delays, or expenses incurred by a Client as a result of any suspension or removal of a Client Account as a result of the Client’s failure to maintain and/or update the Client Account as required.
1.2 Gmail Account Required for Registration. In order to register for a Client Account, the Client must have and maintain throughout the Term a current and working Gmail Account that is owned and directly affiliated with the Client’s business operations.
1.3 Authorizations and Access. The Client agrees to obtain, maintain and/or provide Pitch Black with all authorizations and access to the following accounts in order to permit Pitch Black to perform the Subscription Services: (i) administrative access to the Client Site(s); (ii) existing Client Site(s) statistics for purposes of tracking and analysis including, but not limited to, a “Google Analytics Account” and a “Google Tag Manager”; (iii) the Client’s Google My Business account or authorization(s) to create Google account(s) for the Client’s to perform the Subscription Services; and (iv) the Client Content, as defined herein.
1.4 Pitch Black Access to Client Account. Pitch Black may access the Client Account or information associated with the Client Account to provide support, maintenance, for security reasons or any other business purpose. The Client hereby consents to and authorizes such access.
1.5 Pitch Black Analytics Code Integration Authorization. The Client hereby authorizes Pitch Black to integrate the Pitch Black Analytics Code into Client’s Google Analytics Account, Client Site(s), Google Tag Manager Account, Google My Business Account and such other accounts during the Term, as defined herein, as may be necessary for purposes of performing the Subscription Services.
2.1 Subscription Based Services. In registering for the Client Account, the Client shall be responsible for selecting one of the available subscription-based services package offered by Pitch Black. Subscription Services available within each package (the “Package”) are described in detail in the Client Account registration process and only those services which are expressly identified in the Package shall be included in the Subscription Services. The Subscription Services shall be provided on a “subscription basis”, meaning that Subscription Services will be provided on a monthly basis during the Term to provide the best possible results on behalf of Client.
2.2 Hosting and Technical Support Services Add-On. The Client may request that Pitch Black provide hosting and technical support services on behalf of the Client Site(s). Hosting and technical support services will be billed as an additional service and provided in accordance with the terms and conditions found here [TOS HOSTING AND TECH].
2.3 Additional Services. Additional services outside those expressly identified within the Package may be requested by the Client without invalidating the terms of this Agreement; however, such services shall be provided only upon the execution of a separate written agreement between the Parties.
SET-UP FEES AND SUBSCRIPTION FEES
3.1 Set-Up Fee. Unless otherwise provided pursuant to the terms set forth in the Agreement, the Client shall be responsible for the payment of a one-time set up fee (the “Set-Up Fee”), which is payable upon registration of the Client Account. Pitch Black shall have no obligation to perform the Subscription Services unless or until the Set-Up Fee is received in full from the Client.
3.2 Subscription Fee(s). In addition to the Set-Up Fee, the Client shall pay a monthly subscription fee during the Term of this Agreement, as defined herein, which is identified when selecting the Subscription Services Package within the Client Account (the “Subscription Fee”).
3.2.1 Prepayment of Subscription Fee(s). The Client may prepay the Subscription Fee for the entire Term through a credit card authorized by the Client and processed through a third-party payment processor. Prepayment of the entire Subscription Fee may result in a discount to the Client.
3.2.2 Monthly Payment of Subscription Fee(s). If not prepaid in full by the Client, the monthly Subscription Fee(s) shall be charged to the authorized credit card provided by the Client pursuant to Paragraph 3.3 and 3.4 each month throughout the Term, as defined in Paragraph 5.1, on the anniversary of the registration and selection of the Subscription Services Package.
3.3 Credit Card Authorization. When registering a Client Account, the Client shall be responsible for providing accurate billing information including credit card information for processing. By registering for a Client Account, the Client authorizes Pitch Black and its third-party payment processors to charge the monthly Subscription Fee(s) to the credit card provided on a monthly basis throughout the Term of this Agreement, as defined in Paragraph 5.1, in the amount identified in the Client Account. The Client shall update its credit card information if the credit card expires or otherwise becomes deactivated during the Term. Pitch Black may charge an administrative fee of Thirty-Five Dollars ($35.00) in the event that a payment is returned as NSF or otherwise rejected.
Pitch Black reserves the right, in its sole discretion, to change or eliminate the third-party program management software and change the third-party payment processor with prior written notice to the Client.
3.5 Use of Authorized Discount Codes. A Client may receive an authorized discount code, which provides for a discounted rate or prepays some or all of the Set-Up Fees or Subscription Fees (the “Discount Code”). The Discount Code shall include an explanation of the benefits provided and the period in time during which the Discount Code will apply both in terms of validation or in application to Set-Up or Subscription Fees. ANY CLIENT WHO RECEIVES AN AUTHORIZED DISCOUNT CODE SHALL BE RESPONSIBLE FOR THE PAYMENT OF ALL OTHER APPLICABLE FEES AND THE FULL AMOUNT OF THE THEN EXISTING SUBSCRIPTION FEES AFTER THE DISCOUNT CODE HAS EXPIRED. DISCOUNT CODES SHALL NOT APPLY TO RENEWAL TERM(S) UNLESS EXPRESSLY INDICATED OTHERWISE.
3.6 Changes to Subscription Services Fees. Pitch Black reserves the right, in its sole discretion, to increase the monthly Subscription Fees upon thirty (30) days prior written notice to the Client. Changes to Subscription Fees will not change any prepaid Subscription Fees for the applicable Term. THE CLIENT SHALL HAVE THE OPTION, WITHIN THIRTY (30) DAYS OF SUCH NOTICE, TO TERMINATE THIS AGREEMENT BY PROVIDING WRITTEN NOTICE TO THE FOLLOWING EMAIL ADDRESS: firstname.lastname@example.org
3.7 Downgrading of Subscription Services Package. During the Term, the Client may elect to downgrade its Subscription Services Package upon thirty (30) days prior advance notice to Pitch Black, by electing the downgraded package within its Client Account. If a Client downgrades its Subscription Services Package, the Client’s credit card shall automatically be charged the new monthly Subscription Fees in the next billing cycle.
3.8 NO REFUNDS OR PRORATION. EXCEPT AS STATED IN ARTICLE V, NO REFUNDS SHALL BE GIVEN FOR THE PREPAYMENT OF SUBSCRIPTION FEES, NOR WILL THE PAYMENT OF SUBSCRIPTION FEES BE PRORATED FOR ANY GIVEN MONTH.
3.9 Non-Payment. In addition to such other remedies as Pitch Black may have at law, equity or as set forth in this Agreement, Pitch Black shall have the right to suspend Ad-Buys, disable the Client Account, and terminate this Agreement immediately, without notice, if a Client fails to timely pay any monthly Subscription Fees within ten (10) days of the date in which such Subscription Fees are due.
4.1 Discount Codes Generally. A Client may receive a pre-authorized discount from Pitch Black or in connection with a monetary sponsorship from an organization such as an economic development corporation, business organization, chamber of commerce or related entity (the “Sponsorship Organization”) that agrees to pay for all or some portion of (i) the Set-Up Fees for the Subscription Services; (ii) the monthly Subscription Fees; or (iii) Ad-Buys, as defined herein. Any pre-authorized discount or monetary sponsorship will result in a “Discount Code”, which must be entered into the Client Account in order for the discount or monetary sponsorship to be effective.
4.2 Application of Discount Codes. Notice of the Discount Code shall set forth the specific period of time in which the Discount Code is applicable, the amount of the Discount Code to be applied and the conditions of the Discount Code.
4.3 No Monetary Value. Discount Codes have no monetary value. Pitch Black shall not issue any refunds or credits for unused Discount Codes.
4.4 Expiration of Discount Code. Upon expiration of any Discount Code, the Client shall be responsible for payment of the full amount of the monthly Subscription Fees for the selected Subscription Services pursuant to the terms set forth in this Agreement. Pitch Black may, as a courtesy, remind the Client of the upcoming expiration of any applicable Discount Code, but is not required to do so.
4.5 EARLY TERMINATION OF SPONSORSHIP ORGANIZATION DISCOUNT CODES. All Discount Codes which are issued by Pitch Black in connection with a Sponsorship Organization shall be subject and inferior to the terms of the agreement between Pitch Black and the Sponsorship Organization. As such, Pitch Black reserves the right, in its sole discretion, to immediately terminate this Agreement with the Client in the event that a Sponsorship Organization fails to pay any monetary sums providing the basis of an authorized Discount Code or if the agreement between Pitch Black and the Sponsorship Organization is otherwise terminated early. Pitch Black will use its best efforts to notify the Client in writing within a reasonable period of time of the termination following the Sponsorship Organization’s failure to pay any sums due and forming the basis of the Discount Code or early termination for whatever reason. Upon receipt of written notice from Pitch Black, the Client may elect to continue the Subscription Services for the Package selected pursuant to the terms contained within this Agreement; however, the Client shall be solely responsible for any monthly Subscription Fees for the Package selected, without application of any Discount Codes.
4.5.1 NO LIABILITY FOR EARLY TERMINATION OF DISCOUNT CODE. PITCH BLACK SHALL NOT BE LIABLE TO CLIENT FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE TERMINATION OF THE SUBSCRIPTION SERVICES FOR THE REASONS STATED INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFIT, LOSS OF REVENUE, INTERRUPTION TO THE SUBSCRIPTION SERVICES, REFUNDS OR RELATED COSTS.
TERM AND TERMINATION
5.1 Term. The initial term of this Agreement (the “Initial Term”) shall begin on the date in which the Client registered its Client Account and shall continue for a period of twelve (12) consecutive months, unless earlier terminated pursuant to the terms set forth herein. Upon expiration of the Initial Term or subsequent renewal terms, this Agreement shall automatically renew for twelve (12) consecutive months (“Renewal Term(s), collectively with the Initial Term, the “Term(s)”) unless either Party issues written notice to the other of its intent to terminate this Agreement within thirty (30) days prior to the expiration of the prior Term.
5.2.1 Termination for Cause. This Agreement may be terminated by either Party effective immediately upon delivery of written notice to the other Party in the event that the Party receiving the notice has materially breached a provision of this Agreement, and except for the payment of the Subscription Fee(s), has been provided written notice and opportunity to cure of not less than fifteen (15) days and has failed to do so. The notice shall identify with sufficient detail the nature of the breach so that the Party receiving the notice can take reasonable steps to cure the breach. In the event of a failure to timely pay the monthly Subscription Fees, Pitch Black will automatically terminate this Agreement, deactivating the Client Account, and terminating the Subscription Services if Client fails to pay the Subscription Fees within ten (10) days of when the Subscription Fees were due. Pitch Black shall have no obligation whatsoever to provide advance written notice of termination in the event of a failure to timely pay the Subscription Fees.
5.2.2 Termination for Convenience. Either Party may terminate this Agreement for any reason whatsoever upon thirty (30) days advance written notice to the other Party.
5.3 Termination Date. The “Termination Date” shall be (i) thirty (30) days after receipt of written notice of termination if for convenience; (ii) fifteen (15) days after receipt of written notice of terminate for cause if the breaching Party fails to timely cure or (iii) if involving the nonpayment of Subscription Fees, ten (10) days after the Subscription Fees were due.
5.4 Subscription Fees in the Event of Termination.
5.4.1 Termination for Cause. In the event that a Client terminates this Agreement for cause, as set forth above, Pitch Black will refund on a pro rata basis any Subscription Fees for Subscription Services not yet provided as of the Termination Date or that were rejected by the Client in good faith after Pitch Black was given the opportunity to cure as outlined in Paragraph 5.2.1 and failed to do so within the time given. If Pitch Black terminates this Agreement for cause, as set forth above, Pitch Black shall have no obligation to refund any prepaid Subscription Fees for the Subscription Services, whether or not completed, if the Client failed to cure any material breach after being given the opportunity to do so or if the Client failed to pay the Subscription Fees within the time frame identified.
5.4.2 Termination for Convenience. In the event that Pitch Black terminates this Agreement for convenience, Pitch Black shall refund to the Client on a pro rata basis any Subscription Fees for Services not yet provided by Pitch Black to the Client as of the Termination Date. In the event the Client terminates this Agreement for convenience, Pitch Black shall have no obligation to refund any portion of the Subscription Fees which were prepaid, regardless of whether the Subscription Services have been provided as of the Termination Date.
5.5 Termination Procedure.
5.6 NO LIABILITY FOR FAILURE TO COMPLETE TERMINATION PROCEDURES. Client understands and acknowledges that it is solely responsible for completing the Termination procedures set forth in Paragraph 5.5 and that the Pitch Black Analytics Code, if left and not updated, may result in viruses, data and file corruption, or related problems. Pitch Black hereby expressly disclaims, and Client forever waives, any liability on the part of Pitch Black for any losses, damages, fines, penalties, costs or expenses arising out of or related to the Client’s failure to complete the Termination procedures including, without limitation, those caused by viruses, security breaches, data release or misuse related to the untimely removal of the Pitch Black Analytics Code.
5.7 NO OBLIGATION TO RETAIN OR PROVIDE DATA. Pitch Black shall have no obligation to maintain, store, publish, procure or secure any data derived from the Pitch Black Analytics Code, reports, information or data collection for the benefit of the Client following the Termination Date.
6.1 Ad-Buy Generally. Certain Subscription Services Packages include the purchase of online ad space by Pitch Black on behalf of a Client to market and advertise the Client Site(s) (the “Ad-Buy(s)”). During the Term of any Subscription Services package that includes Ad-Buys, Pitch Black will complete Ad-Buys in accordance with the monthly dollar allocation identified and selected in the Client Account (the “Allocation”). Ads for the Ad-Buys shall be completed utilizing either (i) Ad-Buy Templates selected and completed by the Client, which are timely submitted to Pitch Black for use or (ii) an Evergreen Ad generated by Pitch Black and submitted to the Client for approval in accordance with the terms set forth in this Article. Absent separate written agreement between the Client and Pitch Black, Pitch Black shall have no obligation to create original content for purposes of Ad-Buys.
6.2 Ad-Buys and Third-Party Fees. The Client understands and agrees that the Allocation amount is inclusive of the expense associated with third-party commission fees, which Pitch Black agrees shall not exceed fifteen (15%) percent of cost of the Ad-Buys (e.g., the commission shall be deducted from the Allocation amount, resulting in an Ad-Buy for the amount of the Allocation less the commission).
6.3 Increased Ad-Buy Allocations / Special Campaigns.
6.3.1 Increased Ad-Buy Allocations. A Client may purchase additional Ad-Buy Allocations outside of those selected when registering for the Subscription Services by selecting the amount of the increased Allocation for Ad-Buys within the Client Account. The Client shall designate within the Client Account how the increased Ad-Buy Allocations shall be allocated over time. Content for increased Ad-Buy Allocations shall be selected pursuant to Paragraph 6.4.
6.3.2 Special Campaigns. A Client may request that a special campaign be run through the Ad-Buys to announce an event, special sale, discount code or related occurrence. In such an event, the Client shall be required to submit a completed Ad-Buy Template utilizing the Client Content and submitted to Pitch Black not less than thirty (30) days prior to the intended start of the special campaign.
6.4 Content for Ad-Buys. Except as otherwise provided in a separate agreement executed by the Parties, the content for all of the monthly Ad-Buys shall be from the use of an Ad-Buy Template completed and submitted timely by the Client or from the use of the Evergreen Ads created by Pitch Black as set forth in this Paragraph 6.4.
6.4.1 Ad-Buy Templates. The Client may elect to utilize an existing Ad-Buy Template for purposes of completing monthly Ad-Buys. To do so, the Client shall submit to Pitch Black a fully completed Ad-Buy Template completed by the Client at least thirty (30) days prior to use as part of the monthly Allocation. Client is solely responsible for ensuring that any Ad-Buy Template is proofread, accurate, complete and legally compliant. If the Client fails to submit the completed Ad-Buy Templates to Pitch Black, then Pitch Black shall utilize the Evergreen Ads, defined in Paragraph 6.4.2, to fulfill the monthly Allocation of Ad-Buys.
6.4.2 Evergreen Ads. Within fourteen (14) days of registration of a Client Account and/or selection of a Subscription Services package involving Ad-Buys, Pitch Black will cull existing online Client Content, as defined in Article VII, to generate and create basic advertisements utilizing industry best practices and trends as determined by Pitch Black, which will be used throughout the Term for Ad-Buys for the Client Site(s) (the “Evergreen Ads”).
22.214.171.124 Client Approval of Evergreen Ads. Upon generation of the Evergreen Ads, the Client shall have the opportunity to review and approve for accuracy the proposed Evergreen Ads created by Pitch Black. Pitch Black shall provide the Client with a copy of the proposed Evergreen Ads by sending an email notification to the email identified in the Client Account, which will contain a URL which will allow the Client to view and approve the proposed Evergreen Ads within the link. The Client shall have five (5) days to accept or reject the proposed Evergreen Ads within the URL. The Client shall provide acceptance of the Evergreen Ads in good faith. Once accepted by the Client, the Evergreen Ads shall be utilized for all monthly Ad-Buy Allocations throughout the Term, unless otherwise provided hereunder.
126.96.36.199 Timely Rejection of Evergreen Ads Due to Pitch Black Errors or Mistakes. If the Client timely rejects the Evergreen Ads due to mistakes or errors caused by Pitch Black, and not stylistic reasons or mistakes or errors in Client Content, then Pitch Black shall within five (5) days of receipt of the notice of rejection, fix and/or correct any mistakes or errors in accordance with the written notice received from the Client. The Client shall then provide its final approval of the proposed Evergreen Ads in accordance with Paragraph 188.8.131.52.
184.108.40.206 Timely Rejection of Evergreen Ads Due to Reasons Other than Pitch Black Performance. If the Client timely rejects any proposed Evergreen Ad due to reasons other than Pitch Black errors or mistakes, then the Client shall have the option to (i) submit a completed Ad-Buy Template completed by the Client and submitted to Pitch Black within five (5) days of the rejection for use in the monthly Ad-Buy Allocation or (ii) request changes be made by Pitch Black pursuant to Paragraph 6.5.
220.127.116.11 FAILURE TO TIMELY APPROVE EVERGREEN ADS. IF THE CLIENT FAILS TO TIMELY REJECT THE EVERGREEN ADS AS REQUIRED IN PARAGRAPH 18.104.22.168, THE EVERGREEN ADS SHALL BE DEEMED ACCEPTED AND APPROVED BY THE CLIENT FOR USE IN THE MONTHLY AD-BUYS ALLOCATIONS.
6.5 Additional Fees for Client Requested Changes. A Client requesting changes to Evergreen Ads for reasons other than Pitch Black errors or mistakes, whether creative or stylistic in nature, or to correct mistakes, typos or other errors in Client Content from which the Evergreen Ads were created, or who requests that Pitch Black incorporate other materials, content or information not included in existing Client Content or request changes to any Client submitted Ad-Buy Template shall be required to pay for such additional services at an hourly rate of One Hundred and Twenty-Five ($125.00) per hour, which will be billed in fifteen (15) minute increments. The Client shall be invoiced for such additional services, with such invoice being due prior to Pitch Black’s purchase and placement of any Ad-Buys.
6.6 NO SUPPLEMENTS OR CONTENT TO BE RECEIVED. IN PERFORMING THE SUBSCRIPTION SERVICES, PITCH BLACK SHALL HAVE NO OBLIGATION WHATSOEVER TO RECEIVE AND ACCEPT ADDITIONAL CONTENT, SUBMITTALS, DESIGNS OR OTHER MATERIAL FOR PURPOSES OF CREATING EVERGREEN ADS FOR USE IN THE AD-BUYS. ANY REQUEST RECEIVED FROM A CLIENT SHALL BE SUBJECT TO PARAGRAPH 6.5.
6.7 Changes to Evergreen Ads. Pitch Black may from time to time, in its sole discretion, modify, alter and/or tweak Evergreen Ads in accordance with industry data, trends and analysis gathered by Pitch Black. The Client understands and agrees that Pitch Black will have no obligation to notify or obtain advance approval from the Client before doing so except or unless the changes represent a substantial deviation in the public facing content included in the Evergreen Ads previously approved by the Client. In such cases, the approval process and deadlines set forth in Paragraph 6.4 shall apply.
6.8 NO REFUNDS, CREDITS OR ROLLOVER FOR AD-BUY ALLOCATIONS. In the event that the Client does not use all of the monthly Allocation, there will be no refunds of unspent Allocations nor will Ad-Buy Allocations roll over from month-to-month during the Term. It is very important that the Client timely submit Ad-Buy Templates and/or approvals to maximize the use of the Allocation throughout the Term.
CLIENT CONTENT AND CLIENT SUBMITTED AD-BUY TEMPLATES
7.1 Client Content. For purposes of this Agreement, “Client Content” shall include, but is not limited to, the Client’s business name, email, domain or social media accounts, logos, trademarks, slogans, photographs, designs, information or material contained on the Client Site(s), links within the Client Site(s), social media, video channels or other mediums which are public facing and live online only. “Client Content” may also include information, materials, descriptions, data or collateral provided by the Client to Pitch Black for purposes of performing any of the Subscription Services.
7.2 Representations and Warranties. The Client represents and warrants that it owns and has all necessary title, interest and rights in or all necessary permissions to use the Client Content and material included in Ad-Buy Templates including, without limitation, any trademarks or copyrights, whether or not registered. Client further represents and warrants that the information, material, representations, data and other content contained in or used in conjunction with the Client Content and Ad-Buy Templates is accurate, complete, truthful and free of errors or mistakes and is further in compliance with all applicable local, state, and federal laws, statutes or requirements.
COLLECTION OF CLIENT SITE DATA AND CLIENT SITE VISITOR DATA
8.1 Client Site and Client Site Visitor Data. The Client understands and acknowledges that in performing certain analytic services included in any Subscription Services Package Pitch Black will obtain and collect information and data regarding both the Client Sites and the Client Site Visitors, which is or may be generated through third-party programs including Google Analytics, Google Tag Manager, Google Ad Data and Google Search Console. Specifically, Pitch Black will collect, gather and receive information regarding Client Site Visitors’ actions, activities or interaction with the Client Sites and business location (the “Visitor Data”) including, but not limited to, the following:
Again, Visitor Data collection is generated through third-party programs including Google Analytics, Google Tag Manager, Google Ad Data and Google Search Console and is therefore subject to change based upon the policies, procedures, terms and conditions of such third-party programs.
8.3 Authorization. The Client hereby authorizes Pitch Black to gather, track and create reports, compilations of data and information regarding Client Sites and Visitor Data as set forth above throughout the Term of the Subscription Services to the extent included in the Subscription Services Package selected by the Client. The Client understands and agrees that the Subscription Services necessarily involve the transfer of Client Site and Visitor Data to third-party listing providers who may use the information provided to perform and provide the various services involved.
LICENSES GRANTED TO PITCH BLACK BY CLIENT(S)
9.1 Ownership and License Granted to Utilize Client Content. As between Client and Pitch Black, Client shall be the sole owner of any and all Client Content. Notwithstanding the foregoing, Client hereby grants to Pitch Black a royalty-free, non-exclusive, limited license to utilize Client Content for purposes for completing the Subscription Services and completing the Ad-Buys, which will automatically terminate upon expiration or termination of this Agreement. However, Pitch Black shall be permitted to continue to utilize Client Content for purposes of portfolio, marketing and advertising purposes after expiration or termination of this Agreement.
9.2 Ownership and License to Utilize Client Sites and Visitor Data During the Term. As between the Client and Pitch Black, the Client shall be the sole owner of any and all Client Sites and Visitor Data. Notwithstanding the foregoing, the Client hereby grants to Pitch Black and any Sponsoring Organization, if applicable, a royalty-free, non-exclusive, irrevocable right and license to collect, maintain, analyze and utilize Client Site and Visitor Data and other information that is accessible from the Client Sites for or in connection with (i) providing the Subscription Services including, without limitation, any reports or other functions related to the Subscription Services; (ii) analyzing and improving Pitch Black’s services generally; (iii) the review, compiling or analyzing of the aggregate data derived from the Client Sites during the Term to create statistics, metrics, insights, trends in any particular industry, by geographic location, or for strategies to be implemented by Pitch Black and the Sponsorship Organizations, if any, and (iv) the review, compiling, or analyzing of aggregate data derived from the Client Sites and Visitor Data to compile statistics, metrics, insights, general trend data about the Subscription Services for, among other things, marketing and promotional or related business purposes on behalf of Pitch Black and the Sponsoring Organizations, if any.
9.3 Continued License to Use Client Site and Visitor Data Following Term. The Client hereby grants to Pitch Black and any Sponsoring Organization, if applicable, a royalty-free, non-exclusive, irrevocable right and license to utilize, maintain, distribute, license, sell, extrapolate, and analyze Client Sites and Visitor Data collected during the Term which is anonymized and does not contain Personally Identifiable Information, as defined herein, for any purpose whatsoever including, without limitation, creating best practices, industry trends, insights, promotional activities for other clients, platforms or other developments by Pitch Black.
LICENSES GRANTED TO CLIENT(S) BY PITCH BLACK
10.1 License Granted to Client for Use of Pitch Black Sites and Data Analytics Program. Subject to the terms and conditions set forth herein, Pitch Black hereby grants to Client a limited, revocable, non-exclusive, non-transferable and non-assignable license to (i) view the content of the Pitch Black Sites to which the Client Account permits access, solely for the purposes set forth herein and to use, without modification or change and (ii) access, view and print the Pitch Black Data Analytics program for purposes of viewing data, information and/or reports generated. This license shall automatically terminate upon expiration of the Term or termination of this Agreement without further action of the Parties. The Client understands and agrees that the Pitch Black Data Analytics Program will no longer be accessible to view data that has been collected; however, such data may remain available, if at all, pursuant to the terms and conditions of Google Analytics, Google Tag Manager, Google Ad Data.
10.2 Limited License to Use Evergreen Ads. Subject to the terms and conditions set forth herein, Pitch Black hereby grants to Client a limited, revocable, non-exclusive, non-transferable and non-assignable license to utilize the Evergreen Ads generated and created by Pitch Black in connection with a Subscription Services package including Ad-Buys for the Term of such Subscription Service. This license shall automatically expire upon termination or expiration of the Term of such Subscription Service without further action of the Parties.
CLIENT COOPERATION, REPRESENTATIONS AND WARRANTIES
11.1 Client Cooperation. The Client shall cooperate with Pitch Black to reasonably permit Pitch Black to perform the Subscription Services. Cooperation includes providing account access, up to date information, and approvals required under this Agreement in a timely manner. Pitch Black may, but is not obligated to, request that the Client provide additional Client Content to help improve rankings. In such an event, the Client shall timely provide such Client Content.
11.2 Client Site(s) General Requirements.
(b) The Client shall not utilize the Subscription Services to collect, gather or otherwise generate “Personally Identifiable Information” regarding Client Site Visitors, third-party users or others. For purposes of this Agreement, “Personally Identifiable Information” shall include information that may be used to identify a specific person including, but not limited to, the person’s name, telephone number, physical address, or other personal data as defined in the General Data Protection Regulation (“GDPR”). To the extent that the Client obtains or receives Personally Identifiable Information, the Client shall not share with, publish or release such information to Pitch Black.
(c) Throughout the Term, the Client shall ensure, at its sole cost and expense, that the Client Sites have and maintain appropriate security measures and software as it relates to the collection, storage, transmission or maintenance of any Personally Identifiable Information regarding Client Site Visitors or other third parties who interact with the Client Sites.
(d) Throughout the Term, the Client shall be solely responsible for obtaining any and all consents, permissions, licenses or authorizations for the collection, distribution and use of the Visitor Data.
11.4 Representations and Warranties. Throughout the Term, the Client represents and warrants as follows:
(a) The Client Sites are and shall remain in compliance with all applicable local, state, and federal laws, statutes, orders, directives or regulations.
(b) The Client Sites have and shall maintain the provisions and be in compliance with the requirements set forth in Paragraphs 11.2 and 11.3.
(c) The Client has all rights, title, interest, licenses, and third-party consents or authorizations to convey the licenses granted to Pitch Black and any Sponsoring Organization, if applicable, and that the licenses granted herein do not infringe upon the privacy rights, intellectual property rights or other interests of any third party.
(d) The Client is the “controller” and owner of any Client Site and Visitor Data.
(e) The Client shall not collect or cause to be collected or shared with Pitch Black any “Personally Identifiable Information” of third parties.
12.3 Personally Identifiable Information. Pitch Black does not knowingly or voluntarily collect, gather or obtain “Personally Identifiable Information” from third parties except to the extent that is necessary to provide the Subscription Services contemplated herein.
LIMITED WARRANTY; DISCLAIMER
13.1 Limited Warranty. Pitch Black represents and warrants that it will perform the Subscription Services in a timely, professional and workmanlike manner consistent with industry practices and applicable laws.
13.2 DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE CLIENT, ON BEHALF OF ITSELF, ITS SUCCESSORS AND AFFILIATES, UNDERSTANDS AND AGREES THAT PITCH BLACK IS PROVIDING THE SUBSCRIPTION SERVICES ON AN “AS-IS”, “WHERE-IS” BASIS, AND EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES REGARDING THE SUBSCRIPTION SERVICES, OTHER THAN THOSE EXPRESSLY STATED HEREIN. SUCH DISCLAIMER INCLUDES THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PITCH BLACK FURTHER DISCLAIMS ANY WARRANTIES REGARDING A PARTICULAR RESULT OR OUTCOME.
LIMITATION OF LIABILITY
14.1 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE CLIENT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND SUCCESSORS, UNDERSTANDS AND AGREES THAT IN NO EVENT WILL PITCH BLACK BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, COVER, REPLACEMENT COSTS, SAVINGS, REVENUE, USE OR BUSINESS INTERRUPTION THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OR OTHERWISE, EVEN IF PITCH BLACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES WILL PITCH BLACK’S AGGREGATE LIABILITY EXCEED THE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID BY THE CLIENT IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT, AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES SPECIFIED HEREIN.
14.2 Acknowledged Limitations of Third-Party Services and Disclaimer of Liability. The Client understands and agrees that certain components of the Subscription Services provided by Pitch Black may be impacted by the actions, errors or omissions of third parties or alterations, modifications, updates or related changes to marketing platforms and software including, without limitation, Google Analytics, SEO Listings, Ad Word or Google Store Visits, none of which Pitch Black has control over. These issues may cause, among other things, an interruption to the Subscription Services or their effectiveness. For those reasons, the Client understands and agrees that:
14.3 No Liability for Client Content or Client Site Requirements. The Client is solely and exclusively responsible to ensure that the Client Sites, Client Content, contact information, listing, address, hours, product or service descriptions and other related items are up to date, accurate and comply with all applicable local, state and federal laws, statutes, regulations and directives. Pitch Black shall have no liability or obligation to review, edit, check for accuracy or proofread Client Content, or ensure Client Sites comply with applicable laws or third-party marketing platform requirements, nor shall Pitch Black be liable for any damages, claims or liabilities associated with the foregoing.
DIGITAL MILLENNIUM COPYRIGHT RIGHT ACT OF 1998
16.1 Generally. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the internet infringes their rights under United States copyright law. A copyright owner believing in good faith that any content made available in connection with the services provided by Pitch Black infringes on its copyright, the copyright owner may send a DMCA-Compliant notice, as set forth in Paragraph 16.2, requesting that the content be removed or access be blocked to the content.
16.2 DMCA Take-Down Notice Requirements. The copyright owner and/or its agent may submit the notice to the email address: email@example.com and provide the following information: (i) a description of the work that is claimed as infringed; (ii) identify the location of the infringing work within the Pitch Black Site(s); (iii) provide contact information for the copyright owner and/or agent including full legal name, address, and telephone number; (iv) a statement that the copyright owner believes in good faith that the work constitutes an infringement not authorized by the copyright owner; (v) provide a statement under penalty of perjury that the information is accurate and made by the copyright owner and/or its authorized agent.
16.3 Limitation of this Article XVI. The DMCA Take-Down Notice contemplated within this Article is for copyright infringement claims only. This process shall not apply to any other legal claims or demands.
17.1 Governing Law and Venue. This Agreement will be interpreted and enforced under the laws of the State of Michigan, without regard to conflicts of law principles. Any dispute arising out of this Agreement shall be brought in a court of competent jurisdiction having jurisdiction over Oakland County, Michigan.
17.2 Notices. Any notices required under this Agreement shall be sent in writing to the email identified in the Client Account, if to the Client, and to firstname.lastname@example.org , if to Pitch Black. Notice shall be deemed received in the case of email, when sent.
17.3 Waiver. No waiver by either Party of any default shall be deemed a waiver of prior or subsequent defaults of the same or other provisions under this Agreement.
17.4 No Assignment. Client may not assign its rights or obligations under this Agreement, without prior written approval by Pitch Black. Notwithstanding the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties, their heirs, administrators and assigns.
17.5 Relationship of the Parties. In performing this Agreement, Pitch Black shall be deemed an independent contractor. Nothing hereunder shall be construed to create an employment, joint venture or partnership relationship.
17.6 Force Majeure. Neither Party will be liable for or will be considered to be in breach of or default under this Agreement as a result of the delay or failure to perform (with the exception of any payment obligation set forth herein) as a result of any causes or conditions that are beyond such Party’s reasonable control including, without limitation, acts of God, pandemic, war, strikes, outages of third-party utilities or platforms, or similar events and that such Party is unable to overcome through the exercise of commercially reasonable diligence.
17.7 No Third-Party Beneficiaries. Except as expressly stated herein, there are no intended third-Party beneficiaries to this Agreement.