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BEFORE USING CONDUCTOR’S SEARCHLIGHT PLATFORM (AS DEFINED BELOW), PLEASE READ THESE SEARCHLIGHT FOR AGENCIES END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE AGENCY IDENTIFIED AS THE “AGENCY” IN THE ORDER FORM (“AGENCY”) AND CONDUCTOR, INC. (“CONDUCTOR”). PURSUANT TO THESE TERMS, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE SEARCHLIGHT PLATFORM. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN AGENCY AND CONDUCTOR, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE ORDER FORM.
1. Definitions. “Agency Solution” means the non-exclusive, non-transferable right of the Agency to use the Searchlight Application to deliver SEO services to Agency customers. “Agency Content” means keywords or combinations of keywords that are particular to each Agency customer, the customer’s advertisement materials and links (URL’s) as well as customer’s domain names and or websites and the content therein. “Order Form” means the ordering documents for Agency’s purchases from Conductor executed hereunder from time to time. Order Forms shall be deemed incorporated herein. . “Searchlight Application” means the online, website platform application provided by Conductor via www.conductor.com or at such other designated URL as Conductor may assign from time to time (collectively the “Systems”). “Users” mean employees of the Agency that are authorized to use the Searchlight Application and who have been supplied user identification and passwords by Agency.
2. Agency Solution and Agency Entities. Conductor grants Agency a non-exclusive, revocable, non-transferable, limited license to use the Searchlight Application to deliver search engine optimization (“SEO”) services to Agency’s customers. Agency or any of its affiliates (each, an “Agency Entity”) may purchase the Agency Solution by issuing an Order Form hereunder. Each Order Form will be a separate agreement between Conductor and the Agency Entity. The benefits of this Terms shall extend to the Agency Entity that signs the Order Form and only the Agency Entity that signs an Order Form will be liable for such Agency Entity’s obligations under that Order Form.
3. Conduct and Guidelines. Agency shall not (i) modify, translate, or create derivative works based on the Searchlight Application; (ii) create any link to the Searchlight Application or frame or mirror any content contained or accessible from the Searchlight Application; (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Searchlight Application; (iv) except as otherwise expressly provided herein, rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit Searchlight Application, other than as provided herein. Agency shall be responsible for the collection, legality, and use of information and data that is used in connection with the Searchlight Application. Agency shall not allow its customers or any unauthorized User to have full access or use the Searchlight Application. Except as provided herein, all usage and Subscriptions to the Searchlight Application are provided directly to the Agency and its Users and many not be shared or used jointly with Agency’s customers or any third party without prior written consent of Conductor. Agency shall avoid deceptive, misleading, or unethical practices or representations that might be detrimental to Conductor, the Searchlight Application or the public. Agency shall not make any representation, warranties, or guarantees with respect to the specifications, features, or capabilities of the Searchlight Application that are inconsistent with the instructions provided by Conductor. In addition, Agency agrees that its participation in the Agency Solution is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Conductor with respect to future functionality or features.
4. Fees and Terms of Payment. The Agency shall pay to Conductor all of the fees specified in the Order Forms. Unless otherwise stated in the Order Form, fees are due within 30 days from the invoice date. Any payment not received from the Agency by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. If any Agency account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies set forth in these Terms, Conductor reserves the right to suspend the Searchlight Application without liability to Conductor, until such account is paid in full.
5. Confidentiality. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as the terms and conditions of the Order Form. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to injunctive relief.
6. Proprietary Rights. The Searchlight Application and all intellectual property rights therein are owned or licensed by Conductor. Except for the Subscription granted hereunder, nothing in these Terms gives the Agency any right, title or interest to the Searchlight Application. Agency’s customer shall retain all right, title, and ownership in and to the data contained in any reports generated by the Searchlight Application (the “Reports”.) Notwithstanding, Agency acknowledges that in generating the Reports, Conductor may use certain materials, products, algorithm processing, training material, best practices and other property that belongs to Conductor (“Conductor Property”). The parties agree that Conductor shall retain all right, title, and ownership in and to the Conductor Property, including all intellectual property rights pertaining thereto. Agency shall not: (i) modify, translate, or create derivative works based on the Searchlight Application; (ii) create any link to the Searchlight Application or frame or mirror any content contained or accessible from the Searchlight Application, (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Searchlight Application; or (iv) access the Searchlight Application in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Searchlight Application.
7. Term and Termination. The term of the Agency Solution shall commence on the Effective Date and shall continue until terminated by the parties in accordance hereof. Subscriptions for the Searchlight Application commence on the expected “Subscription Start Date” stated in the Order Form, or, if later or if none is provided in the Order Form, the day User login names and a password are issued to the Agency to access the Searchlight Application (the “Subscription Start Date”). The Subscription will continue for the “Subscription Term” specified in the Order Form (the “Subscription Term”) and may be renewed in accordance thereof. The Agency Solution and the Subscriptions granted hereunder may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination of a Subscription without cause shall not relieve the Agency of the obligation to pay Conductor the fees agreed in the Order Form. Upon written request by the Agency made within 30 days after the effective date of termination, Conductor will provide Agency with temporary access to the Searchlight Application so that Agency can retrieve any Agency Content. After such 30-day period, Conductor shall have no obligation to maintain or provide any Agency Content and shall thereafter, unless legally prohibited, delete all Agency Content in the Systems or otherwise in its possession or control.
8. Indemnification. Conductor shall indemnify and hold harmless the Agency against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Agency by a third party alleging that the use of the Searchlight Application, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if Conductor reasonably believes that the Agency’s use of any portion of the Searchlight Application is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Conductor may, at its expense: (i) procure for the Agency the right to continue using the Searchlight Application; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Searchlight Application as set out herein. Conductor shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Searchlight Application with other equipment or software not supplied by Conductor or in a manner not consistent with Conductor’s instructions. THIS SECTION 8 SETS FORTH CONDUCTOR’S SOLE LIABILITY AND AGENCY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. The Agency agrees to indemnify and hold Conductor harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Conductor by a third party arising from or relating to Agency’s use of the Searchlight Application in violation of the Use Guidelines stated in this Section 8 above.
9. Functionality Warranty. Conductor warrants that the Searchlight Application will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in material conformity with the then current version of the applicable Documentation.
10. Security Warranty. Conductor has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Searchlight Application at reputable third party Internet service providers. “Appropriate Security Measures” means commercially reasonable efforts to ensure that Agency Content will be maintained accurately and safeguarded as well as technical and physical controls to protect Agency Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Conductor, whether by accident or otherwise.
11. Disclaimer. Except as expressly provided herein, Conductor disclaims warranties, whether expressed, implied, STATUTORY OR otherwise AND specifically disclaims all implied warranties including without limitation the conditions AND/or warranties of merchantability or fitness for any purpose to the maximum extent permitted by law. Conductor does not warrant that the Searchlight Application will meet the Agency or the Agency’s customers requirements or that the operation of the Searchlight Application will be uninterrupted or error-free. Further, Conductor does not warrant that all errors in the Searchlight Application can or will be corrected.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID AND/OR DUE BY THE AGENCY. No action against either party arising out of these Terms may be brought by the other party more than one year after the cause of action has arisen.
12. General Provisions. These Terms, inclusive of the Order Forms and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. All obligations of the parties which expressly or by their nature survive the expiration or termination of this Terms, including the parties’ indemnity obligations, shall continue in full force and effect subsequent to and notwithstanding its expiration or termination and until they are satisfied in full or by their nature expire. Agency agrees that Conductor may use Agency’s name and logo on Conductor’s website, and as a part of a general list of Conductor’s partners for use and reference in corporate, promotional and marketing literature. Neither party may assign its rights or delegate its duties under the Terms either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate merger or acquisition provided that the assignee is not a competitor of the non-assigning party. The Terms will bind and inure to the benefit of each party’s successors and permitted assigns. The parties are independent contractors. These Terms do not create a joint venture or partnership between the parties; no party is by virtue of these Terms authorized as an agent, employee or representative of the other party. No modification of, amendment or addition to these Terms is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under these Terms must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. The rights and obligations of the parties and all interpretations and performance of these Terms shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Terms. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the County of New York in the State of New York, USA, and all courts competent to hear appeals there from. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms. Any notices under these Terms shall be in writing and shall be deemed to have been delivered: the next business day after sending by confirmed facsimile or email. Notices to Conductor shall be addressed to the CFO. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from these Terms, and all other provisions of these Terms shall remain in full force and effect. Neither party shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.