This Subscription Agreement (this “Agreement”) is between the person or entity accepting this the Services (as defined below) being provided pursuant hereto (“you”), and Finch, LLC, a Utah limited liability company (“Finch”), for the purpose of achieving optimized Search Engine Campaigns with Google Ads, Bing Ads, and any other advertising portals (collectively, “Advertising Portals”). This Subscription Agreement is to be a working arrangement for performance of search engine marketing optimization (“Optimization Services”) and/or advertising, optimization, reporting and maintenance services (“Display Services,” and together with Optimization Services, as applicable, the “Services”) rendered by Finch on your behalf. BY CLICKING THE “ACCEPT” BUTTON WHEN REGISTERING ONLINE, BY SIGNING AN ORDER FORM REFERENCING THIS AGREEMENT, OR BY ACTIVATING THE FINCH CAMPAIGNS, YOU AGREE TO THESE TERMS OF USE AND ARE CONSENTING TO BE BOUND BY THE AGREEMENT; IF YOU DO NOT AGREE, DO NOT CLICK “ACCEPT”, SIGN, OR OTHERWISE ACTIVATE THE CAMPAIGNS.
1. Accounts. You shall provide Finch with all login information (such as username and password) necessary to access your accounts with the Advertising Portals (the “Accounts”). By submitting such login information, you acknowledge and agree to allow Finch to act on your behalf, to identify oneself with your login information, gain access to your Accounts, download information and update information on your Accounts at its sole discretion. You acknowledge that you are the owner of the Accounts. You agree to allow Finch to make all changes required in your Accounts necessary to perform the Services. You hereby grant Finch with the authority to pursue, download and store in its frequent storage any or all of the information published by your Account provider’s system, website, user interface and program interface.
2. Optimization Services. If you have elected to receive Optimization Services, Finch hereby agrees to provide the following to you: 2.1 Analyze and enhance existing campaigns to achieve optimal granularity 2.2 Keyword discovery to augment campaign coverage 2.3 Runtime performance adjustments of cost per click to meet client objectives 2.4 Management and monitoring of campaigns’ objective 2.5 Reporting provided fully transparent in your Google Ads account (and other Accounts) 2.6 Pre-existing client campaigns will be left as is and paused 2.7 Provide such other Services as may be agreed upon from time to time by you and Finch
3. Display Services. If you have elected to receive Display Services, Finch hereby agrees to provide or make available the advertising, optimization, reporting and maintenance services as set forth on the applicable order form and to provide any support services related thereto.
4. Campaign Objective. Finch will provide the Services to you with targets (measured monthly) based on your stated objectives that you will deliver to Finch. You understand that the initial period is a data gathering phase and may not be a fully tuned campaign. The length of this period depends on the Advertising Portal traffic to your site, number of managed keywords, and search volume and/or traffic to each keyword. With respect to Optimization Services, modifications independently made to configuration by you to the campaign (with the exception of adding New Ads to Ad Groups) can substantially affect and alter optimization of and results for the campaigns. Such altered configurations will, therefore, no longer be considered part of the original optimization Subscription Agreement, and may be billed separately in order for work to continue on the altered configurations.
5. Payment. With respect to Optimization Services, and notwithstanding any early termination of this Agreement pursuant to Section 9 below, you agree to pay Finch during the initial term of this Agreement and any renewal term hereof, as applicable, an annual amount during the initial term hereof and, as applicable, each renewal term, equal to the greater of (a) a percentage of gross advertising spend for ad platforms to be inserted on your behalf by Finch, or the annualized minimum monthly fee as defined in your order form, in either case payable in monthly installments on the first day of each month during the term of this Agreement by credit card or bank transfer; provided that, with respect to month-to-month subscriptions, you shall be responsible for such amounts calculated on a monthly (and not an annual) basis. In accordance with Section 9 below, upon execution of this Agreement, you shall be immediately responsible for the entire amount due hereunder applicable to the initial term hereof, regardless of the length of such initial term. You are also responsible for direct payment to Google Ads and all other applicable Advertising Portals. With respect to Display Services, Finch will invoice the fees outlined on each order form, and you will pay by credit card or bank transfer, such invoiced amounts in accordance with the terms set forth on the applicable invoice. You shall be responsible to pay all sales, use, personal property or other taxes associated with the Services, except for taxes based upon Finch’s net income. Finch may charge interest on delinquent payments in the manner described in Section 9. Failure to timely pay invoices may cause interruption of the Services.
6. Term. This Agreement shall remain in effect from the date you enter into this Agreement until, as applicable, the end of the subscription term you selected either during your online registration or as set forth on the applicable order form you signed, unless earlier terminated pursuant to Section 9 below. For subscriptions of Optimization Services that are not month-to-month, upon the expiration of such initial term, this Agreement shall automatically renew for additional one (1) year periods unless and until it is terminated pursuant to Section 9 below or you provide notice to Finch of your decision to not renew the Agreement (which notice must be received at least 90 days prior to the end of the initial term or any renewal term, as applicable).
7. Use of Name and Logo. You hereby grant Finch permission to use your name and/or logo in any of Finch marketing materials, including materials posted on the internet and you agree to provide digital copies of your logo for such purpose in a format reasonably requested by Finch from time to time. Finch shall include a trademark attribution notice giving notice of your ownership of your trademarks in the marketing materials in which your name and logo appear.
8. Your Responsibility and Copyright Considerations. You will supply Finch with access to Advertising Portals and provide a contact person that will facilitate any configuration of Conversion Tracking and activate the Finch software application. You affirm that you are the full owner of activated accounts, or that you have obtained proper permission from the rightful owner(s) for use of such accounts. You will indemnify Finch and hold Finch harmless against any claims of libel, copyright, or trademark infringement brought against Finch with respect to use of those accounts.
9. Termination Provisions. Subject to the terms of this Section 9, and the termination notice provision set forth in the applicable order form, if any, either you or Finch may, for any reason or no reason or by mutual agreement, terminate this Agreement by giving 30 days' written notice. For the avoidance of doubt, if the applicable order form specifies a termination notice period that is longer or shorter than 30 days, then such notice period shall control solely with respect to any termination by you. If notice of termination is given by either you or Finch, no new work shall be initiated, but any work previously authorized by you up to the point of receipt of termination notice shall be cancelled, unless parties agree otherwise or such work cannot be cancelled due to Finch's contractual obligations to third parties. To the extent any such work continues past the effective date of such termination, this Agreement shall continue in full force and effect until such work is completed (but solely with respect to such work). Notwithstanding anything to the contrary, Sections 5 and 8 through 15 shall survive any expiration or termination of this Agreement. With respect to Optimization Services that are not month-to-month, you acknowledge and agree that, notwithstanding any termination of this Agreement prior to the end of the initial term or any renewal term, as applicable, this Agreement represents a commitment by you for the duration of the initial term or such renewal term, as applicable, and that you will therefore be responsible for all amounts due hereunder through the end of the initial term or such renewal term, as applicable, regardless of the effective date of such early termination by you or by Finch (to the extent Finch terminates this Agreement as a result of your failure to comply with the terms hereof or any other policies or procedures established by Finch from time to time, as determined in its reasonable discretion). The aggregate amount due hereunder applicable to the remainder of the term shall be immediately due and payable to Finch, and any amounts that remain unpaid for more than sixty (60) days (a) shall accrue interest at a rate equal to the lesser of 1.5% per month (compounding monthly) and the highest rate permitted under applicable law, commencing from the date on which such amount was originally due, and (b) may be referred to an attorney or a collections agency. In addition, upon any such termination, you will not be entitled to any refunds or credits for any amounts paid.
10. Liability Limitation. YOU ACKNOWLEDGE AND AGREE THAT FINCH SHALL NOT BE LIABLE WITH RESPECT TO, OR RESPONSIBLE FOR, ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, (i) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (ii) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR, (iii) TO THE EXTENT ALLOWABLE UNDER STATE LAW, PERSONAL INJURY OR DEATH. IN NO EVENT WILL FINCH’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE LESSER OF $5000.00, OR THE AMOUNT LICENSEE ACTUALLY PAID FINCH UNDER THIS AGREEMENT (IF ANY) DURING THE IMMEDIATELY PRECEDING THREE (3) MONTHS.
11. Disclaimer of Warranties. YOU AGREE THAT YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. FINCH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WHILE REASONABLE EFFORT HAS BEEN MADE TO ENSURE THAT YOU WILL RECEIVE THE SERVICES, FINCH MAKES NO WARRANTY THAT SERVICES RENDERED TO YOU ACCORDING TO THIS AGREEMENT WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES FINCH MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. FINCH MAKES NO WARRANTY REGARDING ANY TRANSACTIONS ENTERED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FINCH OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
12. Ownership. Title to all intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services (the “Finch Intellectual Property Rights”) will remain the exclusive property of Finch. Nothing contained in this Agreement grants or confers, or shall be construed to grant or confer, any rights in or to any of the Finch Intellectual Property Rights. Title to any third-party products included in the Finch Intellectual Property Rights, or otherwise provided to you by Finch, and all intellectual property rights in and to them, are and will remain the exclusive property of such third parties.
13. Indemnity. You agree to release, indemnify, defend and hold harmless Finch and any of Finch’s contractors, agents, employees, officers, members, managers, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys’ fees and expenses, relating to or arising out of: (a) this Agreement or the breach of your warranties, representations and obligations under this Agreement, (b) the Services or your use of such Services, including without limitation infringement or dilution by you, or someone else using our Services from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our operating rules or policies relating to the Services provided, (e) any information or data you supplied to Finch, or (f) any liability related to the use of the Accounts, including words and phrases used in connection with your Accounts. The terms of this paragraph will survive any termination or cancellation of this Agreement.
14. Representations and Warranties. You agree and warrant that: (i) your use of the any of the Services will not directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you are the legal owner and have the legal right to perform editing of any of the Accounts registered with the Services, (iv) you are of legal age to enter into this Agreement; and (vi) you agree to comply with all applicable laws and regulations. Any charges obliged by your Account provider will solely apply to you. You agree to pay and maintain any service agreement that you have with your Account provider. You agree to allow Finch to change any settings with your Account provider and agree to pay all media charges caused by such operations even if charges increase as a result.
15. Miscellaneous. Any dispute arising from this Agreement will be litigated or arbitrated in Salt Lake County, Utah. This Agreement shall be governed in accordance with the laws of the State of Utah, without regard to or application of Utah’s conflicts of law principles. This Agreement, together with any other written agreements between all parties hereto, represents the entire agreement between the parties hereto concerning the subject matter of this Agreement and supersedes any and all prior or contemporaneous oral or written statements, agreements, correspondence, quotations and negotiations.
