Terms & Conditions
These Shepherd Shield Advertising Program Terms & Conditions (“Terms”) are entered into by Shepherd Shield Inc. (“Shepherd Shield”) and the entity executing these Terms or that accepts these Terms electronically (“Customer” or “You”). These Terms govern Customer’s participation in Shepherd Shield’s advertising programs and services (the “Services”). Please read these Terms carefully.
BY SIGNING BELOW, REGISTERING FOR OR BY USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS OR OTHER LEGAL ENTITY YOU REPRESENT) AGREE THAT YOU HAVE READ AND UNDERSTAND AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THESE TERMS WITHOUT CHANGE, AS THESE TERMS MAY BE UPDATED FROM TIME TO TIME. YOU FURTHER REPRESENT AND WARRANT THAT (1) ALL THE INFORMATION YOU PROVIDE AS PART OF THE REGISTRATION PROCESS WILL BE ACCURATE AND COMPLETE; (2) IF YOU ARE EXECUTING THESE TERMS ON BEHALF OF AN ENTITY, YOU HAVE THE REQUISITE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF THE ENTITY YOU REGISTER; AND (3) YOU ARE OF THE AGE OF MAJORITY AND LAWFULLY ABLE TO ENTER INTO CONTRACTS. IF YOU DO NOT AGREE TO THE TERMS OF THESE TERMS OR DO NOT HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER THESE TERMS, SHEPHERD SHIELD DOES NOT GRANT YOU ANY RIGHT TO USE THE SERVICES AND YOU SHOULD NOT ACCESS OR USE THE SERVICES.
Definitions. Certain capitalized terms used but not otherwise defined in these Terms have the meanings set forth below.
“Ad” means each advertisement delivered to Shepherd Shield by Customer in connection with Customer’s use of the Services.
“Authorized Users” means your individual employees and independent contractors, or other entities, which access and use the Services on your behalf.
“Brand” means each brand, including any associated trademarks, registered by Customer to use the Services.
“Confidential Information” means any information, data, and materials of Shepherd Shield (i) designated by Shepherd Shield as confidential or proprietary (whether in writing or otherwise); (ii) related to Shepherd Shield’s business or operations; (iii) received by you during the course of your registration for or use of the Services, including information relating to Shepherd Shield or to the Services, including all Services Data, that is not known to the general public; or (iv) received by you by virtue of your relationship with Shepherd Shield, including customer information, product plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities, personnel, research, development, customer data, or know-how.
“Customer Materials” means all trademarks, content, information, data, photographs, images, videos, and other materials and items provided or made available by Customer to Shepherd Shield, including for display in Customer’s Ads. Customer Materials do not include any Shepherd Shield Materials.
“Intellectual Property Right” means any patent, trademark, copyright, domain name, trade secret right, or any other intellectual property or proprietary right arising under any laws and all related rights, including all rights of registration and renewal and causes of action for violation, misappropriation, or infringement of any of the foregoing.
“Platform” means the Shepherd Shield application or portal which provides access to the Services and related information. “Platform” also includes any other website, device, service, application, feature, or online point of presence through which the Platform, and/or products or services (including the Services) available thereon are syndicated, offered, merchandised, advertised, or described.
“Services Data” means all data or information collected, received, or derived by you in connection with the Services whether in isolation from, combination with, or association with any other data or information, including all reporting offered by Shepherd Shield under the Services.
“Shepherd Shield Materials” means the Services, the Platform, the Confidential Information, and any technology, trademarks, content, information, data, photographs, images, videos, and other materials provided or used in connection with the Services, or generated by the Services or Shepherd Shield together with any related Intellectual Property Rights.
Registration. In order to use the Services, you must complete Shepherd Shield’s designated registration process. As a part of the registration process, you must provide to Shepherd Shield all required information that may be requested by Shepherd Shield, including, without limitation, your (or your business’s) legal name, address, phone number, and email address, as well as information regarding your trademarks. You will ensure that the information that you provide during the registration process and that is otherwise associated with your account, including your email address and other contact information and identification of your trademarks, is at all times complete, accurate, and up-to-date. All information provided by you (or on your behalf) during the registration process and your ownership of your trademarks is subject to verification by Shepherd Shield. Shepherd Shield reserves the right to reject your registration in its sole discretion.
Ad Services. In connection with the Services, Shepherd Shield reserves the right to allow and to determine and control the placement and display of the Ads on any Platform in its sole discretion. Shepherd Shield will use commercially reasonable efforts to deliver your Ads to the audience you specify or to achieve the outcome you select, however Shepherd Shield does not guarantee (i) that your Ads will be displayed on, or made available through, any particular Platform or portion thereof, (ii) that your Ads will appear in any particular position on the Platform, or (iii) that your Ads will generate any value as a result of their placement in the Platform. If you request that Shepherd Shield cancel any campaign for your Ads, Shepherd Shield will do so as soon as reasonably practical following receipt of your request in accordance with these Terms. For any cancelled campaign of your Ads (1) you will not be entitled to a refund of any fees previously paid in connection with the cancelled campaign and (2) all fees accrued under these Terms in connection with the cancelled campaign as of the date of termination will be deemed due and payable to Shepherd Shield.
Policies & Modification
Services Policies. You must comply with all guidelines, rules, policies, and terms and conditions applicable to the Services (including applicable third-party terms of agreement) that may be posted by or on behalf of Shepherd Shield on the Platform or otherwise communicated by or on behalf of Shepherd Shield to you from time to time. Such guidelines, rules, policies, and terms and conditions, may be amended from time to time by Shepherd Shield in its sole discretion (collectively, “Shepherd Shield Policies”).
Modification. Shepherd Shield may change the terms and conditions of these Terms at any time in its sole discretion. Shepherd Shield will provide notice of the modifications in a manner that Shepherd Shield reasonably determines to be appropriate, including posting on the Sites or providing notice in accordance with these Terms. You are responsible for reviewing notifications and postings and any applicable changes. Your continued use of the Services constitutes your acceptance of the applicable changes. If you do not agree to any noticed or posted changes, your sole recourse is to terminate these Terms and to cease accessing and using any Services.
Precedence. If there is any conflict between these Terms and any Shepherd Shield Policies or separate agreement between you and Shepherd Shield, such separate agreement shall control.
Access to the Services & Restrictions
Customer Materials. You may provide or make available Customer Materials to Shepherd Shield in connection with the Services in the format and using the interface, feeds, APIs, or other mechanisms Shepherd Shield may require. You will ensure that Customer Materials are complete, accurate, and up-to-date. You are responsible for making copies of all Customer Materials and Shepherd Shield will have no responsibility to maintain back-ups of Customer Materials, and expressly disclaims any liability for loss of Customer Materials or any information for any reason.
Restrictions on Customer Materials. You will ensure that Customer Materials do not relate to, contain, or otherwise seek to advertise or promote any products or services that are prohibited by the Shepherd Shield Policies. You covenant, represent, and warrant that Customer Materials will not (i) be false, inaccurate, or misleading; (ii) contain personally identifiable information or any other confidential information of yourself or others without consent; (iii) violate any local, state, federal, or international laws, rules or regulations; (iv) infringe on the Intellectual Property Rights of Shepherd Shield or any third party, including, without limitation, any publicity or privacy rights; (v) be unlawful, obscene, derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity as determined by Shepherd Shield in its sole discretion; (vi) contain advertisements, solicitations or spam links to other web sites, applications, or individuals, without prior written permission from Shepherd Shield; (vii) contain or reference chain letters or pyramid schemes; (vii) impersonate another business, person or entity, including Shepherd Shield, its related entities, employees and agents; (viii) contain viruses or other harmful computer code; (ix) victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability, or (x) be directed to children younger than 13 years of age.
Restricted Conduct. You will not, and represent and warrant that you will not, engage or aid or abet in any fraudulent, impermissible, inappropriate, or unlawful activities in connection with the Services, whether directly or indirectly, including: (i) generating fraudulent, repetitive, or otherwise invalid clicks, impressions, queries, or other interactions, whether through the use of automated applications or otherwise; (ii) other than through reporting offered by Shepherd Shield under the Services, collecting any user information or Personal Information from any Platform including through any of your Ads or retrieving, extracting, indexing, or caching any portion of any Platform or services, whether through the use of automated applications or otherwise; (iii) engaging in any acts or practices that are unfair or deceptive in connection with your Ads; (iv) interfering with the proper working of any Platform, the Services, or Shepherd Shield’s systems; (iv) transmitting any viruses, “Trojan horses,” or other harmful code; (v) violating any of the Shepherd Shield Policies or any other Shepherd Shield policy or applicable Law; or (vi) interfering with the use of the Shepherd Shield Platform by others, (vii) using the Shepherd Shield Services other than as permitted by these Terms, or (viii) assisting others to do the foregoing or attempting to bypass any functionality or technical limitations Shepherd Shield may use to detect, prevent, or inhibit the foregoing activities;
Your Account. You are solely responsible for maintaining accurate, current, and complete account information, for maintaining the secrecy of any account credentials and passwords used in connection with the Services, and for all activities that occur under your account.
Authorized Users. Subject to Shepherd Shield’s consent (which Shepherd Shield may grant or withdraw at any time in Shepherd Shield’s sole discretion) and through the means as determined solely by us, you may authorize Authorized Users to access or use the Services on your behalf through an application program interface or other means as Shepherd Shield may designate from time to time. You will require each of your Authorized Users and service providers (if any), to be bound by all of the conditions and restrictions of these Terms. All restrictions on your access and/or use of the Services include access and/or use of the Services by your Authorized Users and service provider(s) (if any). You will remain solely responsible and liable for (and Shepherd Shield has no responsibility to you or to any third party for) all acts and omissions (including any loss or damage that Shepherd Shield may suffer) of your Authorized Users, and your employees, contractors, service provider(s), and any other persons who may have access to the Services through you (whether or not such access is authorized by you or by Shepherd Shield), including any breaches of these Terms. Any act or omission by your Authorized Users or service provider(s) amounting to a breach of these Terms will be deemed a breach by you. Except as set forth in this section, all license rights (pursuant to any applicable Intellectual Property Right) granted to you by Shepherd Shield are not sublicensable, transferable, or assignable. If Shepherd Shield provides you with unique login credentials for your Authorized Users or anyone else authorized to access the Services, you are responsible for all activity that occurs under the credentials associated with your account and credentials may not be shared. You must timely notify Shepherd Shield if an account should be disabled for any reason (e.g. due to termination of an employee or if access to the Services is no longer required of an employee).
Changes to Services. Shepherd Shield reserves the right to modify or discontinue all or any portion of the Platform or the Services (or any portion thereof or functionality therein) for any or no reason, and Shepherd Shield bears no responsibility or liability for such changes. Shepherd Shield may at any time in its sole discretion and at any time without notice to you (i) re-design, modify, discontinue offering, or restrict access to any or all aspects of the Platform and the Services, (ii) remove you from the Platform or Services or suspend, reject, or remove any of Customer Materials or your Ads without notice. Shepherd Shield reserves the right to release subsequent versions of the Services (or any portion thereof) and to require you to use the most recent version thereof, and it is your responsibility to ensure, at your own cost, that your access to and use of the Services is compatible with Shepherd Shield’s then-current requirements. Without limiting the generality of the foregoing, Shepherd Shield may limit the availability of the Services to any geographical area or any language and make backwards incompatible changes to the Services. You acknowledge that Shepherd Shield may participate in the Services to market any of Shepherd Shield’s products and services.
Monitoring; Enforcement of Terms. Shepherd Shield has the sole right (but not the obligation) and discretion to monitor your usage of the Service to verify compliance with these Terms. Shepherd Shield may take enforcement actions against you if Shepherd Shield determines in its sole judgment that you or any of your Authorized Users (i) violate these Terms, (ii) have a security deficiency, or (iii) may otherwise threaten or damage the reputation of Shepherd Shield. Enforcement actions include, without limitation: (1) disabling or restricting your or your Authorized Users’ access to the Platform and/or the Services; (2) terminating Shepherd Shield’s agreements with you; and (3) performing any other action as Shepherd Shield in its reasonable discretion deems appropriate. Shepherd Shield will use commercially reasonable efforts to provide appropriate notice to you in connection with any enforcement actions that it takes.
Grant of Rights
Access License. Subject to and conditioned on your compliance with these Terms, Shepherd Shield hereby grants to you, under Shepherd Shield’s Intellectual Property Rights in and to Shepherd Shield Services, a limited, revocable, non-transferable, non-assignable, non-sublicensable, and non-exclusive license during the Term to use and access the Services solely to the extent necessary to advertise on Shephard Shield’s Platform and mobile application by creating and managing campaigns.
License to Customer Materials. By submitting, posting, or displaying Customer Materials in or through the Services, you grant the Shepherd Shield Parties a royalty-free, non-exclusive, worldwide, sublicensable, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, excerpt, analyze, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Customer Materials for the purpose of enabling Shepherd Shield to provide you with the Services in accordance with these Terms and to promote the Services. Nothing in these Terms will prevent or impair Shepherd Shield’s right to use Customer Materials without your consent to the extent that such use is allowable without a license from you under applicable law. All use by Shepherd Shield of your trademarks will inure to your benefit.
Restrictions on Use of Shepherd Shield Marks. You are not permitted to use any name, logo, trademark, or trade name of Shepherd Shield in any publicity release, promotional material, advertising, marketing, or business-generating effort, whether written or oral, without obtaining Shepherd Shield’s prior written consent, which may be withheld in Shepherd Shield’s sole discretion.
Feedback. If you provide Shepherd Shield with any suggestions, proposals, ideas, contributions, or other information provided by you (whether or not or through your Authorized Users) to Shepherd Shield regarding the Services or the Platform (collectively “Feedback”), then such Feedback may be utilized by Shepherd Shield without any limitation or obligation to you. Shepherd Shield will be free to use, disclose, reproduce, modify, sublicense, transfer, distribute, and exploit Feedback in any manner.
Payments & Fees
Customer will pay all charges incurred in connection with the Services by wire transfer or approved credit card within thirty (30) days of receiving notice of the charges by Shepherd Shield. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Customer will pay (i) all taxes and other government charges and (ii) reasonable expenses and legal fees Shepherd Shield incurs in collecting late payments that are not disputed in good faith. Charges shall be based on the billing criteria under the applicable Services (e.g., based on clicks, impressions, or conversions). Any portion of a charge not disputed in good faith must be paid in full. No party may offset any payment due under these Terms against any other payment to be made under these Terms.
Intellectual Property Rights
Shepherd Shield’s Rights. As between you and Shepherd Shield, Shepherd Shield and its licensors own all right, title, and interest (including all Intellectual Property Rights) in and to the Shepherd Shield Materials. All rights not expressly granted to you under these Terms are reserved by Shepherd Shield and/or its licensors, and you do not have (and will not assert) any licenses or other rights (implied or otherwise) except as expressly set forth in these Terms.
Your Proprietary Rights. As between you and Shepherd Shield, you retain all right, title, and interest in and to Customer Materials, except for Shepherd Shield Materials that may be incorporated in or used by Customer Materials. Except for such Shepherd Shield Materials, Shepherd Shield claims no ownership over Customer Materials, and you retain the copyright and any other rights you already hold in Customer Materials. You, and not Shepherd Shield, are responsible for all obligations, risks, liabilities, and other aspects related to Customer Materials and your use of the Services, and any other materials that you or your Authorized Users upload, post, email, or otherwise transmit using the Services. You represent and warrant that: (i) Customer Materials do not infringe or misappropriate, and will not infringe or misappropriate, any Intellectual Property Rights or proprietary or other right of any third party or violate any applicable Laws; and (ii) Customer Materials are not subject to any restrictions on disclosure, transfer, download, export, or re-export under any applicable Law.
Privacy & Data Protection
Services Data. Without limiting anything in these Terms, you will maintain Services Data in the strictest confidence and protect it using all reasonable and necessary security measures. As between you and Shepherd Shield, all right, title, and interest in and to any Services Data will be owned by Shepherd Shield with the exception of Services Data that is collected directly by you through third party tracking tools that Shepherd Shield may permit you to use. Shepherd Shield will determine which, if any, third party tracking tools may be used by you and what information may be collected through any tracking tools, in its sole discretion. You may (i) only use the Services Data to evaluate the performance of the Services solely for your internal purposes; (ii) except as expressly provided in these Terms, not, and may not allow any third party to, use, distribute, disclose, sell, or otherwise monetize Services Data in any manner.
Confidential Information. You agree that: (i) all Confidential Information will remain Shepherd Shield’s exclusive property; and (ii) you will not (and will not permit anyone else to) (1) use any Confidential Information except as necessary for performance of your obligations and exercise of your rights under these Terms or (2) disclose any Confidential Information to anyone other than your Authorized Users who need to know such Confidential Information for such purposes. To safeguard the Confidential Information, you will exercise the same degree of care employed by you to prevent the unauthorized use and disclosure of your own confidential information, but in no event employing less than reasonable degree of care.
Exceptions. Except with respect to Services Data, Confidential Information does not include information which: (i) is rightfully received by you from a third party who is not subject to a restriction on use or disclosure of the information; (ii) was in your rightful possession prior to entering into these Terms; (iii) is or becomes generally known to the public other than as result of a breach by you of these Terms (or other obligation of you to any Shepherd Shield Party); or (iv) is developed by you independently without use of the Confidential Information. In addition, you may disclose Confidential Information to the extent the disclosure has been approved in advance for release by written authorization of Shepherd Shield.
Publicity. You may not use Shepherd Shield’s name, trademarks, or logo in any way (including in promotional material) without Shepherd Shield’s prior written consent, or misrepresent or embellish the relationship with Shepherd Shield in any way. Customer may not make any public statement regarding the relationship contemplated by these Terms (except when required by law).
Injunctive Relief. Your breach or threatened breach of Section 8 or 9 may cause Shepherd Shield irreparable harm and significant injury, the amount of which may be difficult to estimate and ascertain, thus making inadequate any remedy at law or in damages. Therefore, Shepherd Shield is entitled to injunctive relief from any court of competent jurisdiction to enjoin any threatened or actual breach of these Terms and any other relief that such court deems appropriate, in addition to any other remedy or remedies available at Law or in equity.
Term & Termination
Term. These Terms will become effective on your acceptance of these Terms and the term will extend until it is terminated or expires as described in this Section 10.
Termination. Shepherd Shield may immediately terminate these Terms and/or discontinue the Service or any portion or feature for any reason and at any time upon notice to you without liability or other obligation to you. You may terminate these Terms by providing prior written notice of your intent to terminate the Agreement.
Effect of Termination. When these Terms expire or are terminated, all rights and obligations of the parties pursuant to these Terms will end, except that (i) fees accrued in connection with the Services as of the date of termination, if any, all interest thereon, and costs of collection must be paid and (ii) you must immediately destroy any copies of the Confidential Information, and other Shepherd Shield Materials in your (including your Authorized Users’) possession, custody, or control with the exception of any reports provided by Shepherd Shield or data collected directly by you through your ads placed using the Services. The following sections of these Terms will survive expiration or earlier termination and continue to apply indefinitely: 7, 9, 11, 12, 13, 14, 16.
Representations and Warranties of Customer
You represent and warrant to Shepherd Shield that: (a) if you are a business or other legal entity, you are a business or other legal entity duly organized, validly existing, and in good standing under the laws of the country in which your business or other legal entity is registered, and you are registering for or using the Services within such country; (b) you have all requisite right, power, and authority to enter into these Terms and perform your obligations and grant the rights, licenses, and authorizations you grant hereunder; and (c) you and all of your subcontractors, agents, and suppliers will comply with all applicable laws in connection with your use of the Services and in your performance of your obligations and exercise of your rights under these Terms. You also make the representations and warranties set forth elsewhere in these Terms, including without limitation, Sections 4, 7, and 15.
THE SERVICES, INCLUDING ALL SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SHEPHERD SHIELD MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND TO ANY PARTY, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE SITES, THE SERVICES, THE EFFICACY OF THE SERVICES OR THE CONTROLS OR FEATURES MADE AVAILABLE THROUGH THE SERVICES OR ANY FUNCTIONALITY PROVIDED IN CONNECTION WITH THE SERVICES, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. SHEPHERD SHIELD DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE OR WILL BE APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION. THIS SECTION WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. NO INFORMATION OR ADVICE (WHETHER WRITTEN, ORAL, OR OTHERWISE), PROVIDED BY SHEPHERD SHIELD OR ITS REPRESENTATIVES WILL CREATE ANY WARRANTY OR IN ANY WAY AFFECT THE DISCLAIMERS OF WARRANTIES OR LIMITATIONS OF LIABILITY EXPRESSLY PROVIDED IN THESE TERMS.
Limitation of Liability
SHEPHERD SHIELD SHALL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THESE TERMS, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS AND THE SERVICES, EVEN IF SHEPHERD SHIELD HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, SHEPHERD SHIELD’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND THE SERVICES WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS PAID BY YOU TO SHEPHERD SHIELD UNDER THESE TERMS IN CONNECTION WITH THE PARTICULAR SERVICES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
YOU UNDERSTAND AND AGREE THAT ALL RIGHTS UNDER SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA AND ANY SIMILAR LAW OF ANY STATE OR JURISDICTION OF THE UNITED STATES ARE HEREBY EXPRESSLY WAIVED BY YOU. SECTION 1542 READS AS FOLLOWS:
“CERTAIN CLAIMS NOT AFFECTED BY A GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
You release Shepherd Shield and agree to indemnify and hold harmless (and, at Shepherd Shield’s request, defend) Shepherd Shield from and against any and all costs, losses, damages, liabilities, judgments, and expenses (including reasonable fees of attorneys and other professionals), arising out of or in connection with any legal claim, suit, or proceeding (collectively a “Claim”) which in any way may result from or arise in any manner out of: (a) your participation in or use of the Services, including your Ads and reporting offered by Shepherd Shield under the Services; (b) your actual or alleged breach of any representation, warranty, or obligation in these Terms or the Shepherd Shield Policies; (c) your violation of the privacy or publicity rights of any individual or entity or failure to comply with the privacy or data protection laws; (d) Customer Materials, any actual or alleged infringement or misappropriation of any Intellectual Property Rights or other rights by you or any of Customer Materials, and any personal injury, death, or property damage related thereto; (e) your failure to pay any fees for rights, including public performance, guild or union fees, or other fees associated with your Ads or Customer Materials; (f) the pages and sites to which your Ads link, or (g) use of any products sold through your Ads or through pages or sites to which they link. Furthermore, if you are an Agent, you release the Shepherd Shield Parties and agree to indemnify and hold harmless (and, at Shepherd Shield’s request, defend) the Shepherd Shield Parties from and against any and all costs, losses, damages, liabilities, judgments, and expenses (including reasonable fees of attorneys and other professionals), arising out of any Claim related to any actual or alleged breach of your representations, warranties, or obligations set forth in Section 11. You or your agent, if applicable, will, if requested by Shepherd Shield, use counsel reasonably satisfactory to Shepherd Shield to defend each indemnified Claim. If Shepherd Shield asks you to defend a Claim, Shepherd Shield will have the right to participate in the defense of the Claim with counsel of its own choosing. If at any time Shepherd Shield reasonably determines that any indemnified Claim might adversely affect Shepherd Shield, Shepherd Shield may take control of the defense at Shepherd Shield’s expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without Shepherd Shield’s prior written consent.
Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of Washington (and, to the extent controlling, the federal laws of the United States), which will govern without reference to the conflicts-of-laws rules thereof. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act will not apply to (and are excluded from the laws governing) these Terms.
General. The parties’ relationship to each other under these Terms is strictly that of independent contractors and nothing in these Terms will in any way constitute or be construed as evidence of intent to establish any association, partnership, joint venture, or other relationship. Each of the parties will be responsible for covering its costs and expenses in performing its duties and exercising its rights under these Terms, unless expressly provided otherwise herein. If for any reason a court of competent jurisdiction finds any provision of these Terms, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of these Terms and the remainder of these Terms will continue in full force and effect. The section headings used in these Terms are for convenience only and will not be given any substantive effect. When used in these Terms, “includes” or “including” will be deemed to mean “including but not limited to” or “include but are not limited to.” Unless the context or construction otherwise requires, all words applied in the plural will be deemed to have been used in the singular, and vice versa. A party may only waive its rights under these Terms by a written document executed by both parties. Any failure to enforce any provision of these Terms will not constitute a waiver thereof or of any other provision hereof. You may not assign or transfer (by operation of Law or otherwise) any of your rights or obligations under these Terms without Shepherd Shield’s prior written consent, and any such unauthorized assignment or transfer shall be void and of no effect. Shepherd Shield may freely assign or transfer any of its rights or obligations under these Terms. Modifications, amendments, or any alternative terms to these Terms provided by Customer in any separate document, including, without limitation, in an order form, are hereby expressly rejected by Shepherd Shield. Neither party will be treated as having waived any rights by not exercising (or by delaying the exercise of) any rights under these Terms. Except for modifications to these Terms by Shepherd Shield pursuant to Section 15.3, any amendment must be agreed to by both parties and must expressly state that it is amending these Terms.
Changes to Terms. Shepherd Shield may make non-material changes to these Terms at any time without notice, but Shepherd Shield will provide advance notice of any material changes to these Terms. Other than changes made under pursuant to Section 15.2, the changes to the Terms will not apply retroactively and will become effective seven (7) days after notice is provided. However, changes made for legal reasons will be effective immediately upon notice.
Force Majeure. Excluding payment obligations, neither you nor Shepherd Shield will be liable for delay or default in the performance of either of our respective obligations under these Terms if such delay or default is caused by conditions beyond the party’s reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, pandemic, electrical outages, network failures, acts of God, or labor disputes (each a “Force Majeure event”). If a Force Majeure event has continued for ten (10) business days, either party may terminate these Terms without penalty.
Notices. Notices in connection with these Terms by either party will be in writing. Your notices will be sent by postal service or a delivery service (such as UPS, FedEx, or DHL). Notices from Shepherd Shield to you may be sent by postal service, a delivery service, or email. Notices from Shepherd Shield to you will be effective: (a) in the case of notices by email, one (1) day after sending to the email address provided to Shepherd Shield; or (b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to Shepherd Shield. Shepherd Shield will send all notices and other communications regarding these Terms and the Services to you at the email address you specify during the registration process for the Services, or by any other means then specified by Shepherd Shield. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current. Communication with you (including your Authorized Users) will often take place via an email to the contact email address registered to your account. You must ensure that your email address is current and that you do not filter out any such messages. You consent to service of process being effected on you by registered mail sent to your last address known by Shepherd Shield, if so permitted by applicable law.
Communications. When you send emails to Shepherd Shield, you are communicating with Shepherd Shield electronically. For contractual purposes, you consent to receive communications electronically from Shepherd Shield and you agree that all agreements, notices, disclosures, and other communications that Shepherd Shield provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
Entire Agreement. These Terms (including the Shepherd Shield Policies) contains the entire agreement between you and Shepherd Shield with respect to its subject matter and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and Shepherd Shield with respect to the Services.