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Terms and Conditions

LEVELWING GENERAL TERMS AND CONDITIONS

Version 2019

Every product and service provided or sold (each, a “Sale”) by Levelwing Media, LLC (“Levelwing”) to a purchaser (“Client”), whether pursuant to a Levelwing Statement of Work or otherwise (each, a “SOW”), shall be subject to the terms and conditions set forth herein (the “Agreement”). For clarity, where Client is an advertising agency or other third party entering into this Agreement on behalf of another party (the “End-Client”), Client represents and warrants that (i) it has authority to bind End-Client to this Agreement and any SOW or Sales it executes on behalf of End-Client, and (ii) all obligations and responsibilities of Client shall also apply to End-Client on a joint and several basis. Notwithstanding the foregoing, all references to Client herein shall be deemed to include, any purchaser, one and the same, whether purchasing directly or purchasing on behalf of an End-Client.

Levelwing hereby notifies Client in advance that Levelwing objects to any terms and conditions in Client’s purchase order or other document which are additional to or different than this Agreement, whether or not the additional or different terms would materially alter the contract. If a contract between Levelwing and Client is established through performance or other conduct, that contract will not be deemed to consist only of terms and conditions as to which the parties’ writings agree, but rather this Agreement will be a part of that contract and will prevail over the conflicting or different terms or conditions of any other document forming a part of the contract.

  1. SERVICES.
    1. Levelwing will provide Client with the services outlined in the SOW. Should Client request Levelwing to perform additional services beyond what is provided for in the SOW, Client and Levelwing will negotiate in good-faith with respect to the terms, conditions, and compensation for such additional services. Any agreement for additional services will be set forth in a SOW.
    2. Services may include, but are not limited to, an agreement between Levelwing and Client to place certain media (“Advertising”) and/or provide other services with certain media and technology companies and other third parties (collectively, “Vendors”). With regards to such Advertising, Levelwing will use commercially reasonable efforts to deliver media as directed by the Client; however, nothing herein shall relieve Client of its payment obligations for services provided in accordance with this Agreement. Client agrees that it will be solely and ultimately responsible for performance of all payment obligations to Vendors where Advertising and/or other services were provided to the extent that Levelwing has not received payment from Client for said Advertising and/or other services provided hereunder. Client agrees to indemnify Levelwing for any cost incurred in accordance with section 13 of this Agreement.
  2. REPRESENTATION.
    1. During the term of this Agreement, Client agrees not to retain, contract with, or establish a relationship with, whether express or implied, any other party providing the services to be provided by Levelwing as contemplated under this Agreement. Further, Client agrees to work solely with Levelwing to accomplish goals of the SOW and allow Levelwing to act exclusively on Client’s behalf as its agent with regards to the subject matter of the SOW. Client acknowledges and agrees that Levelwing is free to solicit and engage other clients and of other concerns, whether or not such other clients are engaged in the same line of business as Client, and that Levelwing shall not incur any liability to Client for such engagements.
    2. Client acknowledges that Levelwing, acting as Client’s agent, is authorized to bind Client to the terms and conditions Levelwing executes on Client’s behalf with Vendors.
    3. Client acknowledges that it shall solely be liable for any and all applicable foreign, U.S. federal, state, local municipal and other government taxes, duties, levies, fees, excises or tariffs of any kind that may arise in connection with this Agreement (collectively “Taxes”) and that Levelwing, acting as Client’s agent, shall not be liable for any Taxes that Client is legally obligated to pay. Client agrees to indemnify and hold harmless Levelwing from all Taxes and claims, causes of action, costs (including without limitation reasonable attorneys’ fees) and any other liabilities of any nature whatsoever related to Taxes.
  3. CONFIDENTIALITY AND SAFEGUARD OF PROPERTY. Client and Levelwing respectively agree to take reasonable steps to preserve in strict confidence, and not to disclose or use for its own respective benefit or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either party prior to disclosure.
  4. TERM. The term of this Agreement shall commence on the earliest date provided in the SOW and shall continue until terminated in accordance with section 5 of the Agreement.
  5. TERMINATION.
    1. This Agreement will terminate if any Federal or state law, rule or regulation that causes this Agreement to be illegal (in which case the termination date shall be the effective date of the laws as applied to this Agreement).
    2. In the event that Client fails to make payment in accordance with section 6 of this Agreement, Levelwing, in addition to other remedies available to it, shall have the right to suspend or terminate Client’s Advertising and/or other services provided and Client shall have no claim against Levelwing for such action.
    3. Either party may terminate this Agreement at any time if the other party is in material breach of its obligations hereunder and has not cured such breach within thirty (30) days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in this Agreement with regard to specific breaches.
    4. In the event that a SOW is terminated for any reason, Client agrees to pay all costs incurred and/or associated with any services that have been in effect or ordered prior to the termination and any future non-cancelable commitments after the termination becomes effective (as applicable).
  6. COMPENSATION FROM CLIENT AND PAYMENT.
    1. Client costs for services rendered by Levelwing and/or goods purchased on behalf of Client by Levelwing, including, but not limited to, Advertising, analytics, creative services, consulting services and Levelwing fees shall be outlined on the SOW and shall be in US Dollars and all payments by Client to Levelwing will be made in U.S. Dollars.
    2. By its acceptance of this Agreement and any SOW or applicable Sale, Client agrees to pay Levelwing in accordance with the applicable billing schedule outlined in the SOW. Client’s obligation for any and all fees and charges hereunder, shall be absolute and unconditional and shall not be subject to any counterclaim, setoff, or defense.
    3. Client shall pay a finance charge equal to the lesser of 1.5% per calendar month (18% per year) or the maximum amount permitted by law on all monies not paid when due. If Client fails to make payment in accordance with Client’s payment terms, Levelwing, in addition to other remedies available to it, shall have the right to terminate, with two (2) business-days-notice, Client’s Advertising and/or other services with without any obligation to Client and Client shall have no claim against Levelwing for such action.
    4. Any claims for adjustment in billing must be presented in writing to Levelwing within thirty (30) days from the date of the invoice in question with documentation sufficient to support such claim. If no claim is made within such period as expressly provided herein, Client acknowledges and agrees that the amount shown on the invoice shall be deemed to be final and conclusive. Reasonable attorney fees and collection costs at the maximum allowable by law will be payable by Client if the account is delinquent. Payments will first be applied to interest, attorney fees, and then finally to the principal amounts due.
    5. Client cannot cancel or receive refunds for any Advertising and/or other services, which have been executed, or for any Advertising and/or other services ordered unless it has obtained the prior written consent of Levelwing.
    6. When applicable, Levelwing shall be compensated for technology service(s) utilized (referred to hereinafter as “Technology”). Technology shall include, but is not limited to, ad serving, click tracking, data storage, search engine bid reviews and social conversation monitoring. Technology service(s) fee estimates may be set forth in the SOW and Client warrants and represents that it will compensate Levelwing for Technology service(s) solely based upon actual usage as determined by Levelwing, irrespective of estimates previously set forth. From time to time, Levelwing in its sole discretion may increase or decrease its Technology rates by delivery of thirty (30) days advance notice to Client.
    7. When applicable, with respect to any performance related payments (including but not limited to payments from Bounty-per-sale, Percentage of Sale, Bounty-per-Lead, or any other payment due Levelwing which requires reporting to Levelwing), Client shall make access available to Levelwing to an online reporting portal or shall provide performance reporting to Levelwing at a frequency not to exceed seven (7) days. Further, any failure or delay of Client in providing reporting to Levelwing, shall not relieve Client of its payment obligations hereunder.
    8. Where travel on behalf of Client is required, Levelwing will be reimbursed for travel expenses. Reimbursable travel expenses shall include, but not be limited to, air and ground transportation, parking, lodging accommodations, per-diem for meals and internet access. No mark-up will be added to Levelwing charges for travel expenses of Levelwing personnel.
    9. Where Client approval is required for any deliverable, any deliverable by Levelwing to Client shall be deemed accepted and approved by Client if, Client does not notify Levelwing, in writing, to the contrary within five (5) business days of the deliverable being delivered to the Client. Client agrees that under no circumstances shall it unreasonably withhold or delay its acceptance and approval of any deliverable.
  7. ADVERTISING AND CONTENT.
    1. Client acknowledges that Levelwing shall not be responsible for the content of any Advertising, media, websites, landing pages, creative assets or any other created or modified content, including but not limited to, any claims, errors or omissions in materials provided by Client to Levelwing. Client represents and warrants to Levelwing that (i) it is authorized to make available to Levelwing the contents and subject matter of the Advertising; and (ii) the Advertising does not and will not violate any law or regulation or infringe upon any copyright, trademark or any other right of any party. Further, Client shall be solely responsible for any breach of the foregoing without any duty or responsibility on the part of Levelwing.
    2. Due to the nature of online content and user-generated content, Client acknowledges that Levelwing shall not be responsible for the content of any media, websites or landing pages that Client’s ads, content or posts appear on.
    3. Levelwing reserves the right, in its sole and absolute discretion, to reject any Advertising which is not consistent with Levelwing’s standards. Levelwing shall also have the right, at any time, to remove or suspend any or all of Client’s Advertising if Levelwing determines, in its sole and absolute discretion, that the Advertising, Client‘s web content or any portion thereof (i) violates Levelwing’s then applicable advertising policy, or (ii) is otherwise objectionable to Levelwing.
    4. Where Client is engaged under this Agreement in search engine marketing services (whether paid-placement or organic search optimization) or social media services (whether paid or non-paid initiatives), Levelwing shall not require Client approval prior to publishing keywords, text ads, headings, images, copy or posts of any kind unless expressly agreed to in writing on a SOW.
    5. Where Client is engaged under this Agreement in Advertising, Levelwing will use commercially reasonable efforts to deliver media as directed by the Client over the campaign dates. Client acknowledges that as a result of opportunities available that meet Client’s requirements, Levelwing may under-deliver and spend less or over-deliver and spend more than the authorized amount in any given month. Client understands that Levelwing cannot guarantee any delivery of media and further, Client authorizes Levelwing to over-deliver media by up to 15% of its monthly allocation in any given month. Client shall not be responsible for over-delivery that is in excess of 15% of the monthly authorized media buy unless expressly agreed to by Client. Any over-delivery in one month shall be offset by an equal spending reduction in the following month, except as otherwise directed by Client.
    6. Where Client is engaged under this Agreement in Advertising, Levelwing agrees to use commercially reasonable efforts to temporarily stop (“Pause Campaign”) Client’s campaign from time to time as directed in writing by Client. In the event that (i) Client’s site is disrupted or not fully operational and Levelwing has not been notified in writing by Client to Pause Campaign and Client’s campaign continues uninterrupted, or (ii) Vendor fails to Pause Campaign upon Levelwing’s request to do so, Client will remain liable for payment obligations in accordance with section 6 of this Agreement.
    7. Where Client is engaged under this Agreement in Advertising, Client, solely at its own expense, may audit or nominate a third-party to audit Levelwing’s performance under this Agreement for the preceding twelve (12) months upon no less than fourteen (14) days’ written notice, and no more than once per calendar year. Levelwing will keep accurate records pertaining to the performance of Advertising delivered in accordance with the SOW. In the event of an audit, Levelwing shall only make available to Client or Client’s representative without exception, Advertising delivery reporting that has been generated by third-party Vendors, such as search engines, media demand-side platforms, social media platforms and third-party ad servers, and has not been modified or redacted in any way by Levelwing.
  8. EMAIL MANAGEMENT AND DELIVERY SERVICES.   Where Client is utilizing Levelwing’s email marketing technology and services (“Email Services”), Client agrees to the foregoing:
    1. Client agrees that usage of Email Services will solely be limited to Client and further Client understands that it may not resell, transfer, or assign the Email Services to any other party without the express written consent of Levelwing.
    2. Client understands and acknowledges that its use of the Email Services must adhere to the USA federal anti-spam law (CAN-SPAM Act 2003, 15 U.S.C. 7701, et seq.). Specifically, Client may send emails to any recipient who has signed up or otherwise asked to receive emails, using a form that clearly indicates that by submitting his or her email address he or she will receive emails from Client; or who has a clear relationship with Client, as (i) a member of Client’s organization, (ii) a subscriber of Client, or (iii) a customer who has purchased a good or service from Client within the past twelve months.
    3. Client agrees that none of the email addresses used in conjunction with the Email Services shall have been obtained through harvesting, scraping, “spidering” or any other method involving an automated script. Client also agrees not to use any email addresses that have been rented, appended, or purchased from a list broker or other third party, or which were initially obtained more than eighteen months ago and have not received any correspondence from Client since that time, and to take necessary steps to ensure that Client’s customers are not using any email addresses obtained using any of these techniques.
    4. Client agrees to use the opt-out link and process provided as part of the Email Services, which allows any email recipient to instantly and permanently unsubscribe from future Client emails. Should Client receive notification from any person that he or she desires not to receive email from Client, Client agrees to promptly unsubscribe such recipient within ten (10) business days from the date of such opt-out request or prior to the next mailing scheduled to reach such recipient, whichever comes first.
    5. Client represents and warrants to Levelwing the following: (i) the activities for which Client has engaged Levelwing and its Email Services shall not violate any international, federal, state, or local law or regulation, including, without limitation, those relating to individual privacy or the distribution of email messages; and (ii) Client nor any of their respective affiliates will use the Email Services for purposes of, or transmit via the Email Services: (a) any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations; (b) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial or non-commercial communication, except as otherwise expressly permitted by Levelwing; or (c) any content containing a virus, trojan horse, worm, or other harmful component. Levelwing shall have the right, exercisable in its sole discretion, to refuse to distribute any email content, address, or related information provided by Client that contains information that Levelwing reasonably believes to be defamatory, infringing, or otherwise unlawful.
  9. LICENSE.  Client grants, and acknowledges it has the authority to grant, Levelwing a limited, non-exclusive, worldwide royalty-free right and license to use, display and reproduce Client’s trademarks, service marks, logos, copyrights and proprietary ad copy in such media and materials as necessary for Levelwing to perform its responsibilities under this Agreement.
  10. PUBLIC STATEMENTS.  With the exception of Levelwing naming Client on Levelwing’s site, client roster, and marketing materials, the parties agree that neither party shall have the right to advertise or publish any matter or thing concerning the other party without the prior written agreement and authorization of the other party.
  11. RIGHTS, OWNERSHIP AND USAGE.  Subject to Levelwing receiving full payment under this Agreement, Levelwing assigns to the Client, without representation or warranty, all rights, title and interest Levelwing may have in any work specifically created by Levelwing for the Client pursuant to this Agreement, except that:
    1. Levelwing may use and distribute such work as part of its portfolio for promotional purposes;
    2. Levelwing shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “Work”) which have been presented to the Client, but not included in the final work product;
    3. If the Client desires to utilize any of the Work, whether accepted or rejected by the Client hereunder, for any marketing campaign, promotion, product, service, advertisement or any other purpose outside the scope of this Agreement, then the Client shall hire Levelwing to design, create, develop, market and otherwise implement such work. The Client may solicit or hire a third party to implement such Work if, and only if, Levelwing declines to do such Work and such third party is hired on terms in no way more beneficial than the terms first offered to Levelwing.
  12. NOTICES.  Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by electronic delivery (email) with receipt confirmation, personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.
    1. If to Client, the notice shall be delivered to the named person on the most recent SOW.If to Levelwing:Levelwing Media, LLC
      Attention: Jeff Adelson-Yan, President
      913 Bowman Road
      Mount Pleasant, SC 29464Via Email: jeff@levelwing.com
  13. INDEMNIFICATION.  Client does hereby indemnify and hold harmless Levelwing, its respective directors, officers, employees and agents against any and all claims, actions, suits, proceedings, fines, damages, costs (including without limitation settlement costs) losses and expenses, including reasonable attorneys’ fees and costs (collectively “Damages”), which Levelwing may suffer as a result (i) any infringement or violation of any patent, copyright, trademark, trade secret or other proprietary right by or in connection with the content or publication of any content or Advertising; (ii) the content of or publication of such content or Advertising; (iii) any claims of defamation, obscenity, indecency, violation of statutory or common law, privacy or publicity rights or similar claims arising out of or in connection with the content or Advertising; (iv) any Damages arising from any third party claims related to this Agreement; or (v) any breach of this Agreement or any SOW by Client (if applicable).
  14. EXCLUSIVE WARRANTY; LIABILITY LIMITATIONS.  LEVELWING WARRANTS THAT ITS SERVICES WILL BE PERFORMED IN A COMPETENT AND PROFESSIONAL MANNER AND CLIENT AGREES THAT THIS WARRANTY SHALL BE THE EXCLUSIVE WARRANTY OF CLIENT FROM LEVELWING. LEVELWING DOES NOT MAKE ANY OTHER REPRESENTATION OR WARRANTY OF ANY NATURE, WHETHER EXPRESSED OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF ANY KIND, INCLUDING FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. LEVELWING SHALL NOT BE LIABLE FOR DELAYS OR NONPERFORMANCE CAUSED BY ACTIVITIES OR FACTORS BEYOND ITS REASONABLE CONTROL. LEVELWING SHALL NOT BE LIABLE FOR THE CONTENT OF ANY WEB SITES OR PAGES LINKED TO, POSTED TO, OR ADVERTISED ON, OR FOR ANY LOSS, COST, DAMAGE OR EXPENSE INCURRED BY THE CLIENT IN CONNECTION WITH THE PLACING OF ANY ADVERTISEMENT OR ANY OTHER PRODUCT OR SERVICE, INCLUDING, WITHOUT LIMITATION, FOR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR OTHER INJURY, DAMAGE OR DISRUPTION TO THE CLIENT. CLIENT AGREES THAT LEVELWING AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE. CLIENT ACKNOWLEDGES THAT LEVELWING DOES NOT GUARANTEE THAT SERVICES PROVIDED WILL BE ERROR-FREE OR UNINTERRUPTED OR FREE FROM DELAYS. IN NO EVENT SHALL LEVELWING BE LIABLE FOR ANY REPRESENTATION OR WARRANTY MADE TO ANY END USER OR THIRD PARTY BY THE OTHER PARTY, OR ANY AGENT OF CLIENT EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN. UNDER NO CIRCUMSTANCES SHALL LEVELWING’S CUMULATIVE LIABILITY TO CLIENT AND/OR ANY THIRD PARTY BE FOR AN AMOUNT GREATER THAN THE AMOUNT OF FEE (COMPENSATION LESS ANY PASS-THROUGH COSTS FROM THIRD PARTIES, SUCH AS, BUT NOT LIMITED TO, MEDIA COSTS) RECEIVED BY LEVELWING FOR ITS SERVICES PROVIDED TO CLIENT HEREUNDER.
  15. FORCE MAJEURE.  Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party’s reasonable control (including, without limitation power surges, civil unrest, strikes, acts of government, acts of God and interruption in or disruption of telephone service or Internet backbones).
  16. ASSIGNMENT.  Client may not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Levelwing’s prior written approval will be null and void. All terms and provisions of this Agreement and each SOW will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. Levelwing may assign its rights and obligations hereunder to any subsidiary or affiliate or otherwise, or to any successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of Levelwing.
  17. GOVERNING LAW.   This Agreement shall be governed by the laws of the State of South Carolina without regard to any concepts of choice of law. The Federal and state courts located in Charleston, South Carolina shall have exclusive jurisdiction over any claim arising under this Agreement except as expressly provided for herein, and the parties hereby irrevocably consent to such jurisdiction.
  18. WAIVERS.  No waiver, express or implied, by any party of any provision of this Agreement shall be effective unless in writing and signed by the party to be held by the waiver. The waiver of any provision or breach will not be a waiver of any other provision or breach, and one waiver will not be a waiver of any subsequent breach.
  19. SEVERABILITY.  The terms of this Agreement are severable. If a clause hereof is declared illegal or unenforceable by a court or other body of competent jurisdiction, the remainder of the Agreement shall not thereby fail or be rendered void, but shall continue in full force and effect, with only the illegal or unenforceable provision rendered null and void and severed from this Agreement. All rights and remedies hereunder are cumulative.
  20. NON-SOLICITATION OF EMPLOYEES.  During the term commencing with the first Sale and continuing for a period of two (2) years after the conclusion of the last Sale (the “Restricted Period”), Client agrees not to (i) solicit, divert, or hire any employee of Levelwing, (ii) attempt to induce any employee to leave his or her employment, or (iii) hire any employee whose employment ended with Levelwing during the Restricted Period, regardless of the reason the employment was ended (whether voluntarily or involuntarily).
  21. RELATIONSHIP.  The parties hereto are independent contractors. Nothing herein contained or hereby implied shall be deemed to give rise to or shall be construed to establish a principal-agent, employer-employee, partnership or joint venture relationship between the parties; create any relationship of third party beneficiary with third parties; or impart any fiduciary duties upon Levelwing. Client recognizes and agrees that Levelwing shall have no responsibility or liability and hereby releases Levelwing from the actions or inactions of any third parties.
  22. ENTIRE AGREEMENT.  This Agreement constitutes the entire Agreement between the parties hereto relating to the subject matter hereof, and supersedes all prior written or oral agreements, commitments, representations, or understandings with respect to the matters provided for herein, and no modification shall be binding unless set forth in writing and duly executed by each party hereto. This Agreement may be executed in any number of counterparts and facsimile copies, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument. In the event of any inconsistency between the Addenda, the SOW, or the Levelwing General Terms & Conditions, precedence shall be as follows: (1) Addenda in order of most recent to least recent, (2) SOW, (3) this Agreement.
  23. SURVIVABILITY.  Unless otherwise specified, sections 3, 6, 8, 10, 11, 13, 14, 17, 18, 19, 20, 22, 23 and provisions 2c, 7a and 7b shall survive the termination or expiration of any SOW.