Terms of Service for LeapFish Software and Services)

This Agreement ("Agreement") is by and between LeapFish.com, Inc. ("LeapFish") a/an California Corporation and You, Your heirs, agents, successors and assigns ("You"), and is made effective as of the date of execution. This Agreement sets forth the terms and conditions of Your use of LeapFish software (“Software”) and services (“Services”) and explains LeapFish's obligations to You and Your obligations to LeapFish in relation to the Software and Services You purchase.

This Agreement as well as the LeapFish Agreement to Participate – Advertiser and any additional LeapFish policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and LeapFish concerning Your use of LeapFish's Software and Services, and supersede and govern all prior proposals, agreements, or other communications. You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Terms of Service Agreement, the Ad Content Policy and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which LeapFish may establish from time to time, and any agreements that LeapFish is currently bound by or will be bound by in the future.

In addition to any transactions/contracts entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions/contracts entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with LeapFish, whether or not the transactions were in Your behalf. You acknowledge that LeapFish's acceptance of any application made by You for Services provided by LeapFish will take place at LeapFish headquarters in Pleasanton, California, USA.

A. GENERAL TERMS APPLICABLE TO ALL SOFTWARE AND SERVICES

1. TERM OF AGREEMENT; MODIFICATIONS.

You agree that LeapFish may modify this Agreement and the Services from time to time. You agree to be bound by any changes LeapFish may make to this Agreement when such changes are made. If You have purchased Services or Software from LeapFish, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Software or Services. In the event You terminate Your usage, LeapFish cannot and will not refund any amounts You have paid. You agree that LeapFish shall not be bound by any representations made by third parties who You may use to purchase Services from LeapFish, and that any statement of a general nature, which may be posted on LeapFish's Web site or contained in LeapFish's promotional materials, will not bind LeapFish. LeapFish may, at times, offer certain promotions with different charges and features.

2. ACCURATE INFORMATION.

You agree to maintain accurate information by providing updates to LeapFish, as needed, while You are using LeapFish’s Services. You agree You will notify LeapFish within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by LeapFish to determine the validity of information provided by You will constitute a material breach of this Agreement.

You agree that LeapFish may use and rely on any such information provided by You for all purposes in connection with Your Services, subject to LeapFish ’s Privacy Policy (leapfish.com/privacy_policy.html). If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if LeapFish has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, LeapFish has the absolute right, in its sole discretion, to terminate its Services and close Your account.

3. ACCOUNT SECURITY.

You agree You are entirely responsible for maintaining the confidentiality of Your customer number/login, password, and credit card number. You agree You are entirely responsible for any and all activities that occur under Your account. You agree to notify LeapFish immediately of any unauthorized use of Your account or any other breach of security. You agree LeapFish will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by LeapFish or another party due to someone else using Your Account Access Information. For security purposes, You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You will be responsible for all activity in Your account, whether initiated by You, or by others on Your behalf, or by any other means. LeapFish specifically disclaims liability for any activity in Your account, whether authorized by You or not.

4. NO UNLAWFUL CONDUCT OR IMPROPER USE.

As a condition of Your use of LeapFish 's Software and Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to LeapFish if, for any reason, LeapFish takes corrective action with respect to Your improper or illegal use of its Services.

LeapFish reserves the right at all times to disclose any information as LeapFish deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in LeapFish's sole discretion..

LeapFish reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action.

5. NO SPAM.

You agree LeapFish may immediately terminate any account which it believes, in its sole discretion, is displaying or is otherwise connected with any ad spam.

6. INTELLECTUAL PROPERTY.

You agree that LeapFish or its licensor holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services or Software.

You understand and agree that all content and materials contained in this Agreement, other policies, the LeapFish Web site, and any affiliated Web sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that LeapFish or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of LeapFish or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.

7. FEES AND PAYMENT.

As consideration for the Software or Services purchased by You and provided to You by LeapFish, You agree to pay LeapFish at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly written, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. LeapFish expressly reserves the right to modify pricing through email notification and/or notice on its Web site. Payment may be made by You by providing a valid credit card.

If for any reason LeapFish is unable to charge Your Payment Method for the full amount owed LeapFish for the Services provided, or if LeapFish is charged a penalty for any fee it previously charged to Your Payment Method, You agree that LeapFish may pursue all available remedies, including legal, in order to obtain payment.

If You elect to pay by credit card and if for any reason LeapFish is unable to charge Your credit card with the full amount of the Software and/or Services contracted, or if You reverse any portion of the payments you made by credit card, You agree that LeapFish may pursue all available remedies, including legal, in order to obtain payment.

You agree that among the remedies LeapFish may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice of any Keyword Positions or Services registered or renewed on Your behalf.

You agree that You are solely liable for arranging that Your Services are renewed, and that LeapFish shall not be liable to You or any third party if it is unable to charge Your Payment Method in order to renew Your Services.

8. KEYWORD POSITION PURCHASES.

You agree to pay a one time, non refundable, Registration Fee for each Keyword Position registered with LeapFish. Registration Fees are unique per Keyword Position. Since the FTC does not provide support for sales that are for goods or services not primarily intended for personal, family or household purpose, there is no cooling-off period for Keyword Position Registrations per FTC cooling-off rule regulations.

9. KEYWORD POSITION RENEWALS.

When You register a Keyword Position, automatic renewal is the default setting. Unless You disable the automatic renewal option, LeapFish will automatically renew any Keyword Position that is scheduled for renewal and will take payment from the Payment Method You have on file with LeapFish. Keyword Position renewals will be non refundable. If for any reason LeapFish is not able to take the payment from the Payment Method You have on file, and You fail to respond to our notices, Your Keyword Position will expire and will be lost. It is Your responsibility to keep Your Payment Method information current, which includes the expiration date if you are using a credit card. If You do not elect that the Keyword Position be automatically renewed, You have the responsibility of logging into the LeapFish Ad Center and manually implementing the renewal by the expiration date listed. In this case, if You fail to manually implement the renewal in a timely fashion the Keyword Position will be lost and You will no longer have use of that Keyword Position. You agree that LeapFish will not be responsible for cancelled/lost Keyword Positions that You fail to renew, either automatically or manually. Keyword Position Renewal Prices are subject to increase for new Keyword Positions registered only. For Registered Keyword Positions, Keyword Position Renewal Prices as a percentage (%) will not increase past the percentage listed during registration of the Keyword Position.

10. KEYWORD POSITION RESALES AND TRANSERS.

You may resell Keyword Positions to 3rd parties at any reasonable price deemed by you and/or the 3rd party, not less than the original registration price paid for the Keyword Position. You agree to pay LeapFish a nonrefundable Resale Fee for each Keyword Position resold by you to any 3rd party. Keyword Resale Fees are set and fixed per Keyword Position and as a percentage (%) will not increase past the percentage figure listed during registration.

11. REPRESENTATIONS AND WARRANTIES.

You, or the individuals representing You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into a LeapFish Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of a LeapFish Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorized by law to represent You who is 18 years of age or older who is entering into a LeapFish Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name.

LeapFish expressly reserves the right to deny or cancel any Keyword Position registration that it deems necessary, in its discretion, to protect the integrity and stability of the registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of LeapFish, as well as its affiliates, subsidiaries, officers, directors and employees. LeapFish also reserves the right to freeze a Keyword Position during resolution of a dispute.

12. LIMITATION OF LIABILITY.

IN NO EVENT SHALL LEAPFISH BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF LEAPFISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, LeapFish 's liability is limited to the full extent permitted by law. You agree that in no event shall LeapFish 's maximum aggregate liability exceed the total amount paid by You for the particular Software or Service in dispute purchased from LeapFish.

13. DISCLAIMER OF WARRANTIES.

LeapFish 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. Services are provided on an "As Is" and "As Available" basis. LeapFish makes no warranty that its services will meet your requirements, or that the services will be uninterrupted, timely, secure, or error free, or that defects will be corrected. LeapFish does not warrant, nor make any representations regarding the use, or results of, any of the services it provides, in terms of their correctness, accuracy, reliability, performance or otherwise.

14. INDEMNIFICATION.

You agree to defend, indemnify and hold harmless LeapFish and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys' fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with LeapFish whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from LeapFish or Your breach of this Agreement. In addition, You agree to indemnify and hold LeapFish harmless from any loss, liability, damages or expense, including reasonable attorneys' fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should LeapFish be notified of a pending law suit, or receive notice of the filing of a law suit, LeapFish may seek a written confirmation from You concerning Your obligation to indemnify LeapFish. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that LeapFish shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify LeapFish of any such claim promptly in writing and to allow LeapFish to control the proceedings. You agree to cooperate fully with LeapFish during such proceedings.

You agree to cooperate fully with LeapFish during such proceedings. You also agree that if LeapFish is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding an account of Yours with LeapFish, that LeapFish, in its sole discretion, may take whatever action LeapFish deems necessary regarding further modification, assignment of and/or control of your account to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.

15. GOVERNING LAW, VENUE.

This agreement shall be deemed entered into in the State of California. You agree that the laws and judicial decisions of Alameda County, California, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any claims and/or actions relating to or arising out of this Agreement shall be brought in the courts of Alameda County, California.

16. NOTICES.

You agree that all notices (except for notices concerning breach of this Agreement) from LeapFish to You may be posted on our Web site. Notices concerning breach will be sent either to the email or postal address You have on file with LeapFish. In either case, delivery shall be deemed to have been made five (5) days after the date sent.

Notices from You to LeapFish shall be made either by email, sent to the address provided on the LeapFish Web site, or first class mail to LeapFish 's address at:

LeapFish.com, Inc., Attn: Legal Counsel, 4420 Rosewood Drive Suite 2550, Pleasanton, CA, 94588.

17. SEVERABILITY.

You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.

18. WAIVER.

The failure of LeapFish to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of LeapFish thereafter to enforce such provisions.

19. FORCE MAJEURE.

LeapFish will make every effort to keep its Web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold LeapFish liable for any of the consequences of such interruptions.

20. SURVIVAL.

Any and all Sections deemed appropriate by LeapFish shall survive any termination or cancellation of this Agreement.

21. NO THIRD PARTY BENEFICIARIES.

You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which LeapFish may establish from time to time, and any agreements that LeapFish is currently bound by or will be bound by in the future.