THRIVE ONLINE LLC dba Elk Advertising

Terms of Service

These Terms of Service (“Terms of Service”) apply with respect to any services provided by THRIVE ONLINE, LLC (“Elk Advertising,” “we,” “us,” “our,” or similar pronouns), including without limitation, the Services and our infrastructure, tools, websites or landing pages, software, support and network. By using this website and/or our Services, you (“Client,” “you,” “your,” or similar pronouns) are agreeing to these Terms of Service. Please read these Terms of Service carefully before using the Services, as your use of the Services constitute your consent to be bound by the Terms of Service. You can contact us if you have any questions.

Summary of Services

“Services” consist of creating and managing a paid digital advertising strategy which includes, but is not limited to making changes, optimizations and recommendations to advertising publishers such as Google Ads, tracking platforms, reporting dashboards and any other tools required to provide the best effort to generate leads for your business.

For the avoidance of doubt, other than the activity performed by Elk Advertising in accordance with the Services, Elk Advertising shall not be responsible for any activity on your publisher accounts, your third party tools or dashboards, including any actions or omissions by you, your representatives or any third party.  You shall be responsible for maintaining and operating all publisher accounts and your website.  Elk Advertising is not responsible for publisher accounts or your website, including any virus, hack or related problems.  Elk Advertising shall have no liability with respect to your website or any material or content posted to your website. 

Because our Services continually evolve, we reserve the right to update and change these Terms of Service periodically. Any new features that we add to the current Services will be subject to these Terms of Service. Continued use of the Services after any changes to the Terms of Service will deemed your acceptance of the changes. You can review and download the current version of the Terms of Service at: https://elkadvertising.com/terms

 

No guarantee of a specific result

Regardless of any perceived representation to the contrary, We in no way guarantee a specific result for Client. Client understands and agrees that they are paying Us as a service in an effort to generate leads, but that results are never guaranteed.

Limitation of Liability

We warrant that the Services as outlined in any of our communication with Client will be provided in conformance with these Terms of Service.  THE SERVICES ARE PROVIDED TO YOU “AS IS” WITH NO WARRANTY. Elk Advertising DOES NOT PROVIDE ANY WARRANTIES AS TO THE ACCURACY, ADEQUACY, QUALITY OR FITNESS, TIMELINESS, NON-INFRINGEMENT OR TITLE OF THE SERVICES, AND ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Elk Advertising DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND ALL INFORMATION DERIVED FROM THEM, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, Elk Advertising DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE SERVICES IS FREE OF ERRORS, VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. Subject to the foregoing and notwithstanding anything to the contrary elsewhere contained, in no event shall our maximum aggregate liability in connection with the Services exceed the monthly fee paid to us by the Client in the three (3) months preceding the claim.

IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES OF ANY NATURE IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SERVICES AND THE SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, BUSINESS INFORMATION OR DATA STORAGE, GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF THE USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Elk advertising will have no liability in connection with the functionality or content of any search provider or internet publisher or website.

 

Non-disparagement

Client agrees not to disparage, slander or defame, directly or indirectly, Elk Advertising or its principals, agents, officers, owners, directors or employees whether during the Term or after termination of the Services, including without limitation, on all forms of social media and online forums. 

Force Majeure

Neither party shall be in default or otherwise liable for any delay in or failure of its performance under these Terms of Service if such delay or failure arises by any reasons beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications or utilities, or any act or failure to act by the other party or such other party’s officers, employees, agents or contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a party’s reasonable control.

Default

In the event that Client fails to pay any fees or charges for the Services, Elk Advertising may immediately cancel or suspend the Services, in addition to any other remedies available at law or equity.

Term/Termination

The minimum term for the Services shall be set forth on the Addendum provided with these Terms of Service.  The term for the Services commences upon successful collection of your payment for Services and shall continue for the minimum term and thereafter for successive one month periods until such Services are canceled in accordance with these Terms of Service (the “Term”).

Elk Advertising has the right to immediately terminate, modify or suspend the Services at any time for any reason.

Client must give written notice to Elk Advertising at least 15 business days prior to the next payment date to suspend or cancel the Services or to modify or terminate its recurring payment status.  Such notice must be sent to Elk Advertising at info@elkadvertising.com and include an explanation of why Client desires to be taken off recurring status or suspend or cancel the Services.  It is the sole responsibility of Client contact Elk Advertising to suspend or cancel the Services.

Pricing; Payment

In consideration for the Services, Client shall pay to Elk Advertising the monthly fees set forth on the Addendum provided with these Terms of Service (as amended from time to time by Elk Advertising).  Client acknowledges and agrees that the monthly fees are subject to adjustment from time to time upon notice from Elk Advertising and Client’s continued use of the Services constitutes its consent to be bound by any modified fees.

Elk Advertising shall invoice Client on a monthly basis and Client shall pay each invoice promptly but in no event more than 10 days of the applicable invoice date.  Client shall pay the invoice through a third party payment processor using a debit or credit card or an electronic debit from Client’s bank account (ACH transfer).  By submitting payment, Client acknowledges and agrees to the terms of payment for any such third party payment processor.  Client hereby grants permission to Elk Advertising and/or its third party payment processor to charge Client’s debit/credit card or electronically debit its bank account (ACH transfer) for the agreed-upon amount each month.

If you would like to update your credit card or banking information, please contact info@elkadvertising.com.

Indemnification

You agree to indemnify, hold harmless and defend Elk Advertising, its officers, directors, employees, agents and affiliates, from and against any and all claims, actions, proceedings, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) arising out of or relating to (i) your breach of these Terms of Service, (ii) your use of the Services, (iii) your violations of applicable laws, rules or regulations in connection with the Services, or (iv) your or any third party’s acts or omissions in connection with your SEM account(s) or website. Elk Advertising reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you.

Copyright and Trademarks

Client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Elk Advertising for inclusion in the Services are owned by Client, or that Elk Advertising has permission from the rightful owner to use each of these elements and is solely responsible for such content. Client licenses such materials to Elk Advertising for its use in connection with the Services provided.

Assignment and Successors; Binding Effect

The rights and obligations of the Parties under these Terms of Service may not be assigned, transferred, pledged or otherwise encumbered by Client without the prior written consent of Elk Advertising. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, legal and personal representatives, successors and permitted assigns.

Governing Law

These Terms of Service and any claims arising in connection therewith shall be governed by the laws of the State of New York without regard to any choice-of-law provisions.

Should a claim arise, you agree to waive a trial by jury and to first seek resolution by arbitration.

Attorney’s Fees

In any litigation, arbitration or dispute arising under or relating to these Terms of Service or the Services, the prevailing party shall be entitled to recover from the non-prevailing party reasonable attorney’s fees and litigation costs.

Entire Agreement

These Terms of Service (together with any Addendums) constitute the entire agreement between the parties with respect to the subject matter addressed herein and supersedes all prior communications, agreements or understandings, written or oral, between the Parties. 

Severability

The provisions of these Terms of Service are severable, and if any provision of these Terms of Service is determined to be invalid or unenforceable under any controlling law, such invalidity or non-enforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.

Modifications to Terms of Service and Other Policies

Elk Advertising reserves the right at any time and from time to time to update, modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Elk Advertising shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service and you shall not be liable for any refund of any fees paid for such Services.

Downgrading and/or canceling your Service may cause the loss of Data, features, or capacity. Elk Advertising does not accept any liability for such losses.