Hibu Inc. Yellowbook Print Directories and yellowbook.com Terms and Conditions
Directory Advertising; Internet Services; Terms and Conditions: Customer and Publisher (Hibu Inc. or hibuTel Inc.) agree that Publisher will publish advertising in the Directories and/or provide the Internet Services, in accordance with the terms and conditions of this agreement. These terms and conditions and all applicable additional terms and conditions, order forms and other separate contracts agreed to by you to buy Publisher's products and services shall together be referred to as this "agreement." The term "Directories" means the directory or directories listed on this agreement. The term "Internet Services" means the internet advertising and/or website design services listed on this agreement or in a separate agreement between Publisher and Customer. The term "Lead Tracker" means the lead tracking service listed on this agreement. Additional terms and conditions governing Internet Services and Lead Tracker services are set forth below and available at www.yellowbook.com or at www.hibu.com/terms-conditions. The additional terms and conditions applicable to Customer are hereby incorporated into, and are a part of, this agreement.
No Obligation to Publish: Publisher reserves the right to reject this agreement, and/or any copy that it deems, in its sole discretion, to be objectionable. Publisher may reject this agreement at any time within twenty (20) business days after delivery of this agreement by Customer to Publisher. Publisher may reject any copy within twenty (20) business days after such copy is submitted by Customer to Publisher.
Credit: Signer authorizes Publisher to check credit history of signer and Customer with bank and trade references and business and/or consumer credit reporting agencies and further authorizes any such credit reporting agency to provide credit information about signer and/or Customer to Publisher. Signer and Customer agree that Publisher may share signer's and/or Customer's payment record with credit reporting agencies. Publisher has the right to establish credit limits and terms, require deposits, advance payments (e.g., 50% in advance, full payment in advance) or to cancel this agreement if Customer's or signer's, as the case may be, credit history proves to be unsatisfactory, in Publisher's sole, but commercially reasonable, discretion.
Duration of Agreement; AUTOMATIC RENEWAL; Distribution of Directories: A. With respect to advertising in the Directories, the term of this agreement is equal to the issue period for each Directory. The issue period for each Directory is 12 months from date of publication. Publisher reserves the right to extend or reduce a Directory's issue period by no more than six months. If the issue period of a Directory is extended, charges will be extended accordingly. With respect to Internet Services, the initial term of this agreement is for 12 months. Thereafter, this agreement will continue in effect with respect to the Internet Services until Publisher or Customer cancels. Any cancellation by Customer under this paragraph 4 (a) shall be made in accordance with paragraph 8. B. WITH RESPECT TO ADVERTISING IN A DIRECTORY, BY ENTERING INTO THIS AGREEMENT WITH PUBLISHER, CUSTOMER AGREES TO THE AUTOMATIC RENEWAL OF CUSTOMER'S ADVERTISING IN SUCCESSIVE ISSUES OF SUCH DIRECTORY, ON THE SAME TERMS AND CONDITIONS AS SET FORTH IN THIS AGREEMENT, PROVIDED THAT: (i) THE FORM AND CONTENT OF CUSTOMER'S ADVERTISING IN THE SUCCESSIVE ISSUE OF THE DIRECTORY IS MATERIALLY THE SAME AS THE FORM AND CONTENT OF CUSTOMER'S ADVERTISING IN THE PRIOR ISSUE OF THE DIRECTORY; (ii) NOTICE IN WRITING OF SUCH AUTOMATIC RENEWAL IS SENT TO CUSTOMER BY PUBLISHER AT LEAST FORTY-FIVE (45) DAYS BEFORE THE CLOSING DATE OF THE SUCCESSIVE ISSUE OF SUCH DIRECTORY AND CUSTOMER DOES NOT GIVE NOTICE IN WRITING TO PUBLISHER CANCELING SUCH AUTOMATIC RENEWAL BY THE DATE SPECIFIED IN THE NOTICE AT LEAST SEVEN (7) DAYS PRIOR TO SUCH CLOSING DATE; (iii) WHERE CUSTOMER HAS PURCHASED ADVERTISING IN A DIRECTORY AS PART OF A BUNDLE WITH OTHER PRODUCTS, THE AUTOMATIC RENEWAL OF CUSTOMER’S ADVERTISING IN THE DIRECTORY WILL INCLUDE AUTOMATIC RENEWAL OF THE OTHER PRODUCTS INCLUDED IN THE BUNDLE; AND (iv) THE COST FOR THE ADVERTISING WILL BE THE THEN-CURRENT PRICE ESTABLISHED BY PUBLISHER FOR SUCH ADVERTISING AND WILL BE INDICATED IN THE NOTICE OF AUTOMATIC RENEWAL SENT TO CUSTOMER. SEE PARAGRAPH 4.A OF THIS AGREEMENT FOR INFORMATION ABOUT THE ISSUE PERIOD OF DIRECTORIES. IN THE EVENT THAT CUSTOMER CANCELS THE AUTOMATIC RENEWAL OF ADVERTISING IN SUCH DIRECTORY AND CUSTOMER WISHES TO AGAIN ADVERTISE IN SUCH DIRECTORY, A NEW AGREEMENT BETWEEN CUSTOMER AND PUBLISHER FOR ADVERTISING IN SUCH DIRECTORY WILL BE REQUIRED. C. Customer acknowledges that Publisher honors opt-out requests from consumers who do not wish to receive Directories. Customer also acknowledges that Publisher may use targeted distribution to heavier directory users and therefore may not distribute Directories to all households within the directory coverage area. Customer further acknowledges that the print quantity shown in the body of this agreement is an estimate and may vary from the quantity distributed.
Disconnection of Customer's Phone Number or Termination of Internet Services: The change or disconnection of a phone number in an advertisement, or termination of Internet Services by Customer, will not release Customer from its obligations under this agreement.
Payment (Print Advertising and Internet Services): A. Customer agrees to pay the amounts listed in the body of this agreement for print advertising in the Directories and/or Internet Services. B. For print advertising, Publisher will bill Customer monthly for the issue period of each Directory. Publisher may require full payment in advance or at its discretion may bill Customer monthly or annually or as indicated in the body of this agreement. C. For Internet Services, Publisher may require full payment in advance or at its discretion may bill Customer monthly or annually, as indicated in the body of this agreement. D. If Publisher does not receive the full amount invoiced by the due date on the bill, Publisher may assess a late charge not to exceed 1.5% per month of the overdue amount. If Customer fails to pay any bill, whether for print advertising or Internet Services, within thirty (30) days of the due date or, in the case of Internet Services, such shorter period as is provided in the Internet Services terms and conditions, Publisher will have the following rights: 1. Publisher may require full and immediate payment of all amounts due under this agreement. 2. Publisher may cancel publication of Customer's print advertisements in any as then unpublished Directories, and 3. Publisher may suspend or cancel the Internet Services. E. Any deposit may be applied to the last payment coming due under this agreement and/or to delinquent balances. F. Customer agrees to pay a $4.00 handling charge for each installment bill issued by Publisher. The handling charges will be waived for Customers on the AutoPay program. G. Accounts with a monthly charge of $30.00 per month or less will be required to the pay the full annual amount upon receipt of the first invoice. H. All payments will be applied first to the oldest balances outstanding.
Copy, Proofs and Revisions: A. Customer must furnish all copy for print advertising and/or Internet Services prior to the reasonable deadlines set by Publisher. If Customer fails to do so, Publisher may create and publish such copy. Publisher reserves the right to exercise printers prerogative concerning details relating to typeface and style, use of benday and adjustments in layout and design. Publisher will endeavor to furnish proofs of new and revised display print advertisements, but failure to do so will not relieve Customer of its obligations under this agreement. Color is at the discretion of Publisher. No specific color is guaranteed. Publisher reserves the right to modify camera ready or "spec art" if it does not meet Publisher's printing requirements. B. It is Customer's responsibility to notify Publisher, in writing, of any and all name, address or telephone number changes prior to the applicable deadline of each Directory. If Customer fails to do so, Customer will remain obligated to make payments for its advertisement, regardless of whether Publisher was able to make the necessary changes. C. Publisher will determine all headings that appear in its directories. Publisher, at its sole discretion, may refuse to publish an advertisement under a particular heading and does not guarantee the position of an advertisement under a particular heading. Failure to publish an advertisement in a particular position shall not be the basis for claim or adjustment to the amount owed by Customer. Publisher may change the form, appearance, size and content of any of the Directories or of its internet site at any time without notice to Customer. D. CUSTOMER AGREES THAT PUBLISHER, ITS EMPLOYEES, AFFILIATES AND AGENTS SHALL NOT BE LIABLE FOR ERRORS OR OMISSIONS IN DIRECTORY ADVERTISING IN EXCESS OF THE AMOUNT PAID FOR THE ITEM(S) AND SHALL NOT BE LIABLE FOR LOST PROFITS, DIRECT OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR CONTINGENT DAMAGES ARISING OUT OF SUCH AN OMISSION OR ERROR. NO ADJUSTMENT WILL BE GIVEN FOR DELAY OF PUBLICATION OR DISTRIBUTION OR FOR CHANGES IN THE ANTICIPATED NUMBER OF DIRECTORIES TO BE PUBLISHED OR DISTRIBUTED. PUBLISHER'S LIABILITY FOR ERRORS IN LISTINGS SHALL BE LIMITED TO THE PRICE OF THE LISTING IN QUESTION, AND THERE WILL BE NO ADJUSTMENT WITH RESPECT TO FREE LISTINGS OR FREE ADVERTISEMENTS. IT IS THE CUSTOMER'S RESPONSIBILITY TO NOTIFY PUBLISHER OF ERRORS OR OMISSIONS IMMEDIATELY WITH RESPECT TO CUSTOMER'S INTERNET SERVICES. PUBLISHER WILL ENDEAVOR TO CORRECT ANY SUCH ERROR OR OMISSION PROMPTLY. CUSTOMER WILL NOT BE ENTITLED TO ANY ADJUSTMENT OR CREDIT DUE TO ERRORS OR OMISSIONS IN CUSTOMER'S INTERNET SERVICES. PUBLISHER'S SOLE OBLIGATION BEING TO CORRECT ANY SUCH ERROR OR OMISSION. LIMITATION OF LIABILITY-BY CATEGORY: 10% ADJUSTMENT - TYPOGRAPHICAL ERRORS, INCORRECT/OMITTED LOGO, LAYOUT ISSUE (BORDERS, APPEARANCE, FONT), INCORRECT E-MAIL OR URL ADDRESS; 25% ADJUSTMENT - INCORRECT ALTERNATIVE PHONE NUMBER, MISSPELLED BUSINESS NAME/ ADDRESS, INCORRECT ILLUSTRATION/PHOTOGRAPH; 100% ADJUSTMENT - OMISSION OF ADVERTISEMENT, INCORRECT MAIN PHONE NUMBER; NO ADJUSTMENT - PLACEMENT, POSITION, INACCURACIES WITH FREE LISTINGS OR FREE ADVERTISING ITEMS, NO PROOF OF ADVERTISING RECEIVED, VARIATIONS OR ERRORS IN COLOR ADJUSTMENT EQUAL TO THE PUBLISHER'S STATED CHARGE - OMISSIONS OF COLOR/ HIGHLIGHT E. IN NO EVENT WILL PUBLISHER, ITS EMPLOYEES, AFFILIATES OR AGENTS BE LIABLE TO CUSTOMER FOR ANY OTHER DAMAGES INCLUDING, BUT NOT LIMITED TO, ALLEGED LOSS OF BUSINESS, REVENUES OR PROFITS OR THE COST OF OTHER FORMS OF ADVERTISING. CUSTOMER UNDERSTANDS THAT THIS LIMITATION OF LIABILITY WILL APPLY TO ANY CLAIM AGAINST PUBLISHER, ITS EMPLOYEES, AFFILIATES AND AGENTS, INCLUDING, BUT NOT LIMITED TO, CLAIMS BASED ON BREACH OF CONTRACT, TORT (SUCH AS NEGLIGENCE) OR STRICT LIABILITY OR STATUTE.
Cancellation/Notices to Publisher: With respect to print services, Customer may cancel this agreement, upon written notice to Publisher given prior to the fourteenth (14th) day after Customer signs this agreement (prior to the fourteenth (14th) day after Customer's voice verification of this agreement if this agreement was made by way of telephone sale). With respect to the Internet Services, other than WebReach services, Customer may cancel this agreement seven (7) days prior to the establishment of the Internet Services. With respect to the WebReach services, Customer may cancel this agreement effective after the initial six (6) months of WebReach services on twenty (20) days prior notice to Publisher. Customer shall give any written notice to Publisher required by this Agreement by certified mail, return receipt requested, reputable overnight courier or hand delivery, and notices will be deemed to have been given, one (1) day after date of mailing or date of deposit with a reputable overnight courier, or on the day of delivery if delivered by hand. Any such notice shall be addressed to Customer Service, Attn: Cancellations, Hibu Inc. at 221 3rd Ave SE, Suite 300, Cedar Rapids, IA 52401. Customer acknowledges that Publisher shall retain any deposit, which will be applied to any future print services or Internet Services purchased by Customer within two years from the date of this agreement. At the end of such two-year period, Customer will forfeit the deposit including any right to apply the deposit to future print services or Internet Services.
Force Majeure: Publisher shall not be liable to Customer for any failure of the Internet Services resulting from events beyond Publisher's control, including fire, accident, acts of God, strike, power or telephone failure or the inability to obtain access to any website included in the Internet Services.
Right to Use Trademarks and Photographs; Permits and Licenses; No Endorsement; Indemnification:Permits and Licenses; No Endorsement; Indemnification: A. Customer represents and warrants that it has the right to use any trademark, trade name, or copyrighted material included in any copy submitted to Publisher. Customer also represents and warrants that it has the right to use any artwork, portrait, picture or illustration of a person shown in any copy submitted to Publisher. Customer will notify Publisher, in writing, if Customer should cease to have any such right. Customer assumes sole responsibility for the protection of its intellectual property rights in any writing, pictorial illustration, design, map, photograph, or combination thereof, included in its print advertising or the Internet Services. B. Customer represents and warrants that it holds all necessary permits and licenses to provide the products and services identified in its print advertising or in the Internet Services and to appear under the heading classification(s) listed on this agreement. Customer agrees that it is responsible for ensuring that its print advertising and Internet Services comply with any laws or regulations that may be applicable to its business. Customer understands and agrees that Publisher does not approve or endorse any of Customer's products or services, whether or not identified in Customer's print advertising or in the Internet Services. C. Customer agrees to indemnify Publisher (and its employees, affiliates and agents) against, and hold Publisher (and its employees, affiliates and agents) harmless from, all liability, claims demands, suits or causes of action, whether or not partially attributable to the negligence of Publisher, and will pay all expenses, including reasonable attorney fees, settlements, and/or judgments, incurred by Publisher in the defense thereof, arising out of Customer's breach or alleged breach of the foregoing representations and warranties.
Successors and Assigns; Entire Agreement: Customer acknowledges having entered into this agreement without relying upon any promises, statements, estimates, representations, warranties, conditions or other inducements, expressed, implied, oral or written, not specifically set forth herein. This agreement contains the entire understanding between the parties regarding the subject matter of this agreement and shall bind the parties and their respective successors and assigns. Customer may not assign its rights hereunder without the prior written consent of Publisher, and no such assignment shall relieve Customer of its liability hereunder.
Collection Expense: In the event Publisher refers Customer's account to a collection agency or attorney due to a non-payment, Customer will be liable for all of Publisher's reasonable costs and expenses incurred in connection with Customer's non-payment, including, without limitation, court costs and reasonable attorneys' fees up to 25% of the amount of the unpaid account balance (plus interest accrued thereon).
Sales Representative Not Authorized to Make Changes: The sales representative of Publisher has no authority to make any changes in this agreement or to commit Publisher in any manner whatsoever in contradiction to the provisions expressly set forth in this agreement.
Miscellaneous: A. The individual signing this agreement on behalf of Customer represents and warrants that he or she is authorized to sign as an owner, officer, partner, or employee of Customer and that he or she is empowered to bind Customer to the terms and conditions contained herein. B. This agreement shall be governed by, and interpreted in accordance with, the laws of the state in which Customer maintains its principal place of business. C. Prices do not include federal, state and local sales, use, excise or gross receipts taxes, if applicable, and Customer agrees to pay or reimburse Publisher for such taxes. D. If any provision of this agreement is held to be unenforceable, such holding shall in no way invalidate any other provision hereof, and this agreement shall remain in full force and effect. E. This agreement may be executed and delivered in any number of counterparts, and all such counterparts shall constitute the same instrument. Customer understands and agrees that an authentic copy or electronic reproduction of this agreement shall have the same force and effect as an original counterpart. F. This agreement supersedes any other verbal or written agreement between Customer and Publisher. This agreement may not be changed except by a writing signed by an authorized signatory of Customer and Publisher. G. IN ANY LEGAL PROCEEDINGS RELATED TO THIS AGREEMENT, PUBLISHER AND CUSTOMER HEREBY AGREE TO WAIVE ANY RIGHTS THEY MAY HAVE TO PARTICIPATE IN ANY CLASS, GROUP OR REPRESENTATIVE PROCEEDING, AND PUBLISHER AND CUSTOMER HEREBY AGREE TO WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY.
Authority; Persons Obligated; Signer Obligated: The signer agrees that he/she has the authority and is signing this agreement (1) in his/her individual capacity, (2) as a representative of the Customer, and (3) as a representative of the entity identified in the advertisement or for whose benefit the advertisement is being purchased (if the entity identified in the advertisement is not the same as the Customer or the signer). By his/her execution of this agreement, the signer personally and individually undertakes and assumes, jointly and severally with the Customer, the full performance of this agreement, including payment of amounts due hereunder, including amounts due upon or by reason of automatic renewal. Signer hereby waives the right to separate notice and agrees that any notice to Customer constitutes notice to signer.
Introduction. These Lead Tracker additional terms and conditions are incorporated into and for a part of this agreement between Customer and Publisher applicable to the Lead Tracker Services to be provided by Publisher to Customer. In the event of any conflict between these additional terms and conditions and the terms and conditions set forth in the agreement between Publisher and Customer, these additional terms and conditions shall be controlling.
Publisher will arrange for Customer's use of a "keyed/metered" telephone number (otherwise referred to as an RCF telephone number or RCF) and/or a measurable URL/Domain Name to be inserted in Customer's advertising program. The number of incoming calls and/or website visits generated by the ad(s) and other qualitative data will be measured and analyzed throughout the life of the applicable print directory or directories and/or the term of the other applicable advertising products (such issue year and/or term being hereinafter referred to as the "Advertising Period").
Customer agrees during the Advertising Period not to publish or otherwise make use of the RCF telephone number and/or URL/Domain Name in any other media (including but not limited to newspaper, TV, radio, direct mail, outdoor, internet or yellow pages advertising). Customer further agrees not to disclose any results of this program at any time without the prior written consent of Publisher.
Customer agrees that Publisher may publish all or any portion of Customer's advertising program on online products owned or operated by Publisher's distribution partners and affiliates.
Customer authorizes Publisher to use the name of Customer, telephone call data, and number of website visits generated through this program, in Yellowbook advertising, marketing and promotional materials.
In the event that Customer fails to make payment when due for the advertising program in which the RCF telephone number and/or URL/Domain Name is included or in the event of a breach by Customer of paragraph 1, Publisher shall have the right to disconnect such RCF telephone number and/or URL/Domain Name and, in the case of an RCF telephone number, Publisher will have the right to forward calls received on the RCF telephone number to other directory advertisers in Customer's market providing the same or substantially the same services and/or products as Customer. Disconnecting of the RCF telephone number and/or URL/Domain Name, and/or forwarding of calls received on the RCF telephone number, does not release Customer from Customer's obligations under this agreement or from Customer's obligations to pay for such advertising program for the entire Advertising Period, including portions of the Advertising Period following the disconnecting of the RCF telephone number and/or URL/Domain Name or forwarding of calls received on the RCF telephone number.
Publisher shall have the right to seek enforcement of this agreement by action for specific performance, injunction and/or recovery of money damages and/or by other appropriate legal action in the event of breach or threatened breach by Customer.
If Customer has ordered the Call Recording feature on the RCF telephone number(s), Customer agrees to the additional terms and conditions relating to the Call Recording feature set forth on Exhibit A below, and further agrees as follows:
Customer is solely responsible for use of the Call Recording feature in compliance with federal, state and local laws and regulations governing the recording of telephone calls, and other federal, state and local laws and regulations.
Without limiting (a) above, if Customer is accepting credit or debit card payment information via telephone, Customer is solely responsible for use of the Call Recording feature in compliance with Customer's obligations under the Payment Card Industry (PCI) Data Security Standard.
Customer is solely responsible for informing all employees and other persons answering Customer's RCF telephone number that calls are being recorded.
Publisher has entered into an agreement with a third party vendor ("Vendor") that allows Publisher to use Vendor's voice recording and call tracking services via Vendor's private and proprietary telecommunications network (the "Services"). Under the terms of this agreement between Vendor and Publisher, a non-exclusive revocable license is granted for Publisher to provide the Services to Customer, subject to the following terms and conditions.
Vendor is not a party to the agreement between Customer and Publisher.
Customer understands and acknowledges the Services make an electronic recording of all telephone calls made to the designated, licensed telephone numbers for purposes of "quality assurance" and "customer service." Customer understands and acknowledges that when a person (the "Caller") makes a call to Customer through any licensed phone number, Caller will be automatically advised that each call is subject to recording and monitoring prior to the connection of the telephone call to Customer.
As a condition of usage, Customer expressly agrees, acknowledges, and warrants that federal, state, and local laws may require that Customer provide notice to and/or receive express consent and permission from, in writing or otherwise, all agents (including employees), independent contractors, and /or other persons who are on the receiving end of the recorded telephone calls (the "Call Receivers"). Customer agrees, acknowledges, and warrants it will be solely responsible for providing and/or obtaining all notices, consents and permission relating to Call Receivers, as required by applicable law. Customer may be required from time to time to certify in writing to Publisher, and update this certification on a monthly basis, that all Call Receivers have been notified, have consented and have given permission to have their voice, identity, and call content recorded, monitored, stored, and divulged. If Customer is accepting credit or debit card payment information via telephone, Customer is solely responsible for use of the Call Recording feature in compliance with Customer's obligations under the Payment Card Industry (PCI) Data Security Standard.
Customer agrees, acknowledges, and warrants that Publisher and Vendor accept no responsibility for (a) the legality of recording, monitoring, storing, and/or divulging telephone calls and (b) the legality of the language used in the recorded notification as these services and content pertain to federal, state, and local laws. Customer agrees, acknowledges, and warrants by using the Services that Customer has reviewed the legality of recording, monitoring, storing, and divulging telephone calls, and that Customer and Publisher are permitted to engage in those activities, and that Customer shall use the Services in compliance with federal, state, and local laws.
If Customer is a “health care provider” or other “covered entity” as defined by the Health Insurance Portability and Accountability Act (“HIPAA”), Publisher cannot provide Customer with the Call Recording option, as Publisher cannot undertake any obligations under HIPAA relating to the protection of individually identifiable health information.
If you are a business that may assert a professional privilege as to communications from or with a client or potential client (e.g., attorneys, accountants), you acknowledge and assume the risk that the use of a call recording service provided by a third party may jeopardize or preclude the application of such professional privilege to information communicated during telephone conversations that are recorded.
Customer also agrees, acknowledges, and warrants it has established proper procedures to protect the privacy of the Callers and the Call Receivers. In the event the Vendor provided notification requires a revision in order to comply with applicable law, then Customer (itself, or through its agent) shall promptly advise Publisher in writing of that fact.
Customer hereby agrees, acknowledges and warrants that Publisher is duly authorized to act as its agent, and is granted full access to administer, manage, use, and monitor the call recordings. Customer agrees that use of the Services is subject to Publisher's good standing with Vendor, and may be terminated at any time Vendor terminates service with Publisher. Customer acknowledges that all matters regarding the Services provided by Publisher to Customer are between Customer and Publisher. Vendor and Publisher are not joint ventures or partners, and Vendor specifically disclaims any responsibility for any actions of Publisher in administering, monitoring, using or accessing the Services on Customer's behalf. Specific permission is granted to Publisher, as Customer's provider, to administer, monitor, use and access Customer's calls as Customer's agent.
Customer shall defend, indemnify, and hold harmless Publisher and Vendor and their agents (including employees) from any and all claims, liabilities, and/or damages that arise from or relate to use or misuse of the Services by Customer.
Publisher and Vendor are not liable or responsible for any failure, outage, or other circumstances that may cause any or all of Customer's telephone calls not to be received, recorded, monitored, divulged, and/or saved at all and/or as planned, including but not limited to privacy-rights liability, consequential damages, lost profits, or loss of any other interest that may occur, directly or indirectly.
The Services shall not be used to intimidate, harass, or otherwise violate the privacy or other rights of Caller or Call Receiver. In the event that Publisher or Vendor discover any alleged misuse of the Services, Publisher or Vendor may terminate the Services without prior written notice and without liability.
These Pay Per Call additional terms and conditions are incorporated into and form a part of the agreement between Customer and Publisher applicable to the Pay Per Call services to be provided by Publisher to Customer. In the evet of any conflict between these additional terms and conditions and the terms and conditions set forth in the agreement between Publisher and Customer, these additional terms and conditions shall be controlling.
Publisher will arrange for Customer's use of a "keyed/metered" telephone number (otherwise referred to as an RCF telephone number or RCF) and/or a measurable URL/Domain Name to be inserted in Customer's advertising program. The number of incoming calls and/or website visits generated by the ad(s) and other qualitative data will be measured and analyzed throughout the life of the applicable Yellowbook print directory or directories and/or the term of the applicable yellowbook.com or WebReach advertising program (such issue year and/or term being hereinafter referred to as the "Advertising Period"). The tracking of calls made to the RCF telephone number, the compilation and reporting by Publisher of information relating to such calls and Customer's agreement to pay for calls made to the RCF telephone number is referred to herein as the "Pay Per Call Program" or "PPC Program."
Customer agrees during the Advertising Period not to publish or otherwise make use of the RCF telephone number and/or URL/Domain Name in any other media (including but not limited to newspaper, TV, radio, direct mail, outdoor, internet or yellow pages advertising). Customer further agrees not to disclose any results of this program at any time without the prior written consent of Publisher.
Customer authorizes Publisher to use the name of Customer, telephone call data, and number of website visits generated through this program, in Publisher’s advertising, marketing and promotional materials.
In the event that Customer fails to make payment when due for the advertising program in which the RCF telephone number and/or URL/Domain Name is included or in the event of a breach by Customer of paragraph 1 of this agreement, Publisher shall have the right to disconnect such RCF telephone number and/or URL/Domain Name and, in the case of an RCF telephone number, Publisher will have the right to forward calls received on the RCF telephone number to other Publisher advertisers in Customer's market providing the same or substantially the same services and/or products as Customer. Disconnecting of the RCF telephone number and/or URL/Domain Name, and/or forwarding of calls received on the RCF telephone number, does not release Customer from Customer's obligations under this agreement or from Customer's obligations to pay for such advertising program for the entire Advertising Period, including portions of the Advertising Period following the disconnecting of the RCF telephone number and/or URL/Domain Name or forwarding of calls received.
Customer shall ensure that all calls to the RCF number are diligently and consistently answered, consistent with the terms hereof and in a manner appropriate for the PPC Program and the business in which Customer operates. Any misuse of the PPC Program or the RCF telephone numbers shall not affect Customer’s obligation to pay any and all amount due to Publisher as applicable, under this Agreement.
In the event Customer's designated telephone number(s) or the underlying telephone service for use with the Pay per Call program is changed, disconnected, interrupted or altered, Customer shall be held liable for all calls placed but not received. Publisher will be entitled to charge for, and Customer shall be obligated to pay for such calls.
Publisher does not guarantee the number of calls to be generated from the PPC Program, nor that any calls generated from the PPC Program will be legitimate inquiries for Customer and/or will be of any benefit or value to Customer. Customer acknowledges that the calls may be from parties potentially offensive to Customer, the result of prohibited or improper purposes, and the result of robots and other automated or mechanical means.
Customer will be charged for every unique call made within 72 hours to the RCF telephone number. Customer and Publisher agree that Customer will be charged only for unique calls which are answered and last 20 seconds or longer (Including calls that go to voicemail or answering machine) and that Customer will not be charged for missed calls.
Customer agrees that Publisher may publish all or any portion of customer's advertising program on online products owned or operated by Publisher’s distribution partners and affiliates. Customer will be charged for calls generate from those sources, as outlined above. Publisher and the distribution partners and affiliates may change the website(s) and services included in their network from time to time. Customer agrees that all placements on the network shall conclusively be deemed to have been approved by the Customer. Publisher is not obligated to provide Customer with the names of the website(s) or services to which its advertisements will be submitted.
Customer understands that the charges by Publisher to the Customer for the PPC Program will not exceed 150% of the annualized scheduled list price of the advertising products comprising the PPC Program and that such charges are in addition to charges for Customer’s other ad programs (if any). The scheduled list price of the advertising products comprising the PPC Program will be provided to Customer upon request by Customer to Customer’s sales representative.
Customer authorizes payment to Publisher by automatic debit to Customer’s credit card or checking account.
Publisher shall have the right to seek enforcement of this agreement by action for specific performance, injunction and/or recovery of money damages and/or by other appropriate legal action in the event of breach or threatened breach by Customer.
The individual signing this Agreement on behalf of Customer represents and warrants that he/she is authorized to enter into this Agreement on behalf of Customer.
Introduction. These Online Display Additional Terms and Conditions are incorporated into and form a part of the agreement between Customer and Publisher applicable to the online display campaign Internet Services to be provided by Publisher to Customer, which includes creating Customer's online campaign (“Campaign”), designing and building banners, sourcing banner space from premium websites and managing the performance of the Campaign (“Online Display Services”). For purposes of these terms and conditions, each Online Display Service product purchased by Customer is a separate Online Display Service and Campaign. In the event of any conflict between these additional terms and conditions and the terms and conditions set forth in the agreement between Customer and Publisher, these additional terms and conditions shall be controlling.
Policies. Publisher reserves the right to amend these additional terms and conditions and to establish and revise its standards, policies, practices, specifications, technical requirements and schedules with respect to the Online Display Services (collectively, "Online Display Publisher Policies"). Customer agrees that a change in the Online Display Publisher Policies (including, but not limited to, the standards, practices or policies of any third parties on whose website or network Customer's Campaign may be published or linked by or through Publisher (the “Network Sites”) pursuant to the license granted in Section 6 below shall not entitle Customer to any reduction in the amounts payable for the Online Display Services by Customer to Publisher.
Payment Terms. Customer agrees to pay for the Online Display Services as provided in the Agreement. The monthly payment charges are payable on a monthly basis in advance. If Customer has authorized payment to Publisher by automatic debit to Customer's credit card or checking account, such authorization will remain in effect until thirty (30) days following the later to occur of (a) expiration of Customer's Online Display Services or (b) Publisher's receipt of Customer's written notice of termination of such authorization. When Customer purchases a Campaign, Customer authorizes Publisher to charge Customer, under the payment method agreed to by Customer and Publisher, the applicable monthly charge for each month of a Campaign. Customer understands that Publisher shall have the right to end all of Customer's Campaigns at any time when Customer has a debit balance with Publisher.
Minimum Contract Term. The minimum contract term for the Online Display Service 250 and 500 is twelve (12) months, where such 12-month period commences on the date the Campaign for such service goes live. The minimum term for the Online Display Service 800 and 2000 is six (6) months, where such 6-month period commences on the date the Campaign for such service goes live.
Termination. This contract may be terminated by Customer, subject to the applicable minimum contract term set forth in Section 4 above, by telephoning Publisher's customer service team at 888-672-8990 and requesting termination of the Online Display Services, and such termination will be effective as follows: If Customer provides Publisher at least fourteen (14) days' notice prior to the end of a given month (being a period of one calendar month starting on the date that Customer's Campaign goes live and each subsequent one calendar month period after that (each a “Service Month”)), Publisher will terminate Customer's contract for Online Display Services at the end of that Service Month. If Customer provides Publisher less than fourteen (14) days' notice prior to the end of a given Service Month, Publisher will terminate Customer's contract for Online Display Services at the end of the next Service Month. Customer acknowledges that Publisher shall retain any deposit or payments already made. Customer understands that at no time will cash be refunded upon cancellation or budget change to Customer's Campaign.
Customer Campaign Content and Intellectual Property Rights. All tangible and intangible works of any kind (including, without limitation, text, graphics, images, illustrations, artwork, maps, photographs, fonts, visual and audio recordings, websites, software, codes, HTML and other content, in whatever form or media) designed, developed, created or procured by Publisher in connection with any Campaign or the Online Display Services will be the sole and exclusive property of Publisher, except for: (a) “Customer Content,” which means all content that Customer provides to Publisher (including, without limitation, listing information, any trade name, trademark, trade secret, service mark, copyright, patent or other intellectual property right, any URL or domain name, any content contained on any website referenced to or linked to by any Campaign, and any required disclosure, explanation, rule, term or condition of use related to any Campaign); and (b) any content that Publisher licenses from a third party content provider for use in connection with such Campaign or the Online Display Service, including, without limitation, graphics, text and photographs (collectively, “Third Party Content”). The use of all Third Party Content will be subject to all restrictions and obligations imposed by the third party provider of such content (“Third Party Restrictions”). By submitting Customer Content to Publisher, Customer agrees that it is authorized to provide, and that it grants Publisher permission, to display all such Customer Content forming Customer's Campaign's banners. Customer agrees that it is solely responsible for ensuring that the Campaign's banners comply with all applicable laws, regulations, codes of practice, guidelines and other standards applicable to Customer and its business and all specifications, schedules, guidelines, procedures, deadlines, format and technical requirements as Publisher may establish from time to time (collectively, “Publisher Schedules”). Customer acknowledges that Customer's failure to comply with any Publisher Schedule may cause publication of the Campaign or performance of Online Display Services to be delayed or refused and Customer agrees that Publisher will have no liability for any such delay or refusal. If Publisher determines, in the exercise of its sole discretion, that Customer has violated Customer's obligation to comply with any Publisher Schedule, then Publisher may temporarily and/or permanently suspend its provision of any Campaign, in whole or in part, without prior notice. Customer assumes sole responsibility for: (i) the protection of the trade names, trademarks, trade secrets, service marks, copyrights, patents and other intellectual property rights in any Customer Content appearing in a Campaign; (ii) conducting any copyright and trademark searches and other similar activities which may be necessary in relation to any domain name contained in any Customer Content (including, without limitation, those that Publisher may register for Customer); and (iii) including appropriate copyright and trademark notices with Customer Content. Customer agrees that Publisher will have the continuing right, in the exercise of its sole discretion, to review, select from or among, revise or reject any Customer Content for any reason, including, but not limited to, unsatisfactory technical quality, inconsistency with any of the Online Display Publisher Policies, or non-compliance with the Agreement. Notwithstanding such right, Publisher will have no liability whatsoever to Customer or any third party for any Customer Content included in any Campaign and Customer shall be solely and exclusively liable therefore. Customer hereby grants to Publisher a perpetual, royalty-free, sub-licensable, non-exclusive right and license to use, copy, record, modify, display, publish, perform, prepare derivate works based on and distribute (for Publisher's sole benefit and in any form or media now known or hereafter developed, and in any and all languages) Customer Content: (A) in connection with the design, development, creation, display and publication of the Campaign (or any derivative thereof); (B) in connection with Publisher's provision of Online Display Services; and (C) in any Publisher marketing or promotional materials. Without limiting the generality of the foregoing, Publisher shall have the right (x) to sub-license to third parties any or all of the rights afforded to Publisher in the preceding sentence and (y) to license to third parties the right to use, copy, record, modify, display, publish, perform and distribute the Campaign (and any portions thereof) in any form or media now known or hereafter developed, subject to any Third Party Restrictions governing any Third Party Content contained in the Campaign and such other terms and conditions as Publisher may deem appropriate. Publisher and its third party sub-licensees may use any presently existing and future means of communication or transmission in the exercise of any of the rights and licenses granted above.
Usage Policy. If Publisher believes in its absolute discretion that the extent or frequency of amendments that Customer requests be made to its Campaign banners are excessive, Publisher may advise Customer of that fact. Should Publisher continue to receive a high level of amendment requirements, Publisher may terminate or suspend the Campaign. Publisher may update Customer's Campaign banners and Campaign targeting from time to time without prior notice in order to improve the Campaign's performance and availability. Customer understands and agrees that Publisher does not represent, warrant or guarantee (expressly or impliedly): (a) the actual number of impressions, clicks or the number of people that will view an item of a Campaign; (b) the particular level of exposure or any particular result from a Campaign; (c) the success or results of any Campaign or the Online Display Service; and (d) which website within Publisher's network of websites Customer's Campaign will run.
Third-Party Providers. Some of the Online Display Service features are reliant on third party providers or other websites. Customer acknowledges that: (a) Publisher may not be able to provide a particular feature where Customer does not meet the relevant criteria of that third party provider; (b) Publisher does not have any control or exercise influence over the third party provider's own services; and (c) a third party provider's service may cease or change from time to time. Customer acknowledges that such events are beyond Publisher's control and agree that such an event will not permit Customer to terminate the Online Display Services nor will Publisher have any liability to Customer for the impacts that these may have. Where the Online Display Service features involve setting-up and/or administering a page or pages on a third party website, Customer acknowledges that: (i) where necessary, Publisher is authorized to set-up an account on Customer's behalf; (ii) Publisher is authorized to administer the page or pages on Customer's behalf; and (iii) Customer grants Publisher permission to display on the page(s) all content referred to above and that Customer has the authority to grant Publisher such permission.
Disclaimer and Limitation of Liability. PUBLISHER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, FOR NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. IN ADDITON TO OTHER DISCLAIMERS SET FORTH IN THESE TERMS AND CONDITIONS, PUBLISHER DISCLAIMS ALL GUARANTEES REGARDING POSITIONING OR THE LEVELS OR TIMING OF: (I) COSTS PER CLICK; (II) CLICK THROUGH RATES; (III) DELIVERY OF ANY IMPRESSIONS ON ANY NETWORK SITES; (IV) CLICKS; (V) CONVERSIONS FOR ANY ADS; (VI) CALLS; OR (VII) COSTS PER CALL. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO PUBLISHER BY CUSTOMER FOR THE ONLINE DISPLAY SERVICES GIVING RISE TO THE CLAIM. REMEDIES SET FORTH IN THIS SECTION 9 SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS CUSTOMER MAY HAVE UNDER THE AGREEMENT. THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO LIMIT THE POTENTIAL LIABILITY OF PUBLISHER ARISING OUT OF THE AGREEMENT.
Indemnification. Customer shall indemnify, hold harmless and defend Publisher, its agents, affiliates, Network Sites, and licensors from all claims, liabilities, damages, costs and expenses, including, without limitation, reasonable attorneys' fees and expenses, and third party claim or liability (collectively, "Liabilities") arising out of Customer's use of the Online Display Services or Customer's breach of the Agreement.
Customer and Third Party Websites. Customer agrees that Publisher is not responsible for any aspect of Websites owned or operated by Customer or any third party. Customer grants Publisher permission to mirror its Websites and/or create Websites on Customer's behalf. Customer acknowledges that changes to Customer's Websites can cause problems to Publisher's tracking technologies, therefore, Customer agrees to contact Publisher in advance regarding changes to Customer's Website, Website content, or Website URL.
Customer's Additional Representations and Warranties. Customer represents, warrants and covenants that Customer has the necessary rights to provide all information provided under the Agreement (including, without limitation, all content, data, data feeds, listings, titles, URLs, descriptions and, if applicable, selected keywords) for use as described in the Agreement, and that all such information and all claims, statements, products and services contained or referenced therein and in the Website(s) to which it links: (a) do not violate any law, statute, ordinance, treaty or regulation or policy or guideline of Publisher; (b) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity (including, without limitation, rights of publicity or privacy), and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) are not false, deceptive or misleading; (e) are not defamatory, libelous, slanderous or threatening; and (f) will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept or expropriate any system data or personal information.
Website Development and Domain Names/URLs -Additional Terms and Conditions
Introduction. These Website Development and Domain Name/URL Additional Terms and Conditions are incorporated into and form a part of the agreement between Customer and Publisher applicable to the Website Development, Maintenance and Domain Name/URL Services ("Services") to be provided by Publisher to Customer. In the event of any conflict between these Additional Terms and Conditions and the Terms and Conditions set forth in the Agreement between Customer and Publisher, these Additional Terms and Conditions shall be controlling.
Services. Publisher will develop, design and build a custom website ("Website") for Customer. Publisher will maintain the Website for the duration of the term of the Agreement between Customer and Publisher. Publisher will also purchase a domain name/URL on behalf of Customer.
Domain Names/URLs. Once a domain name/URL is acquired by Publisher for Customer it may not be changed or exchanged and Customer will not receive a refund for any domain name/URL Customer decides not to use. The domain name/URL remains the property of Publisher for the entire term of the Agreement between Customer and Publisher. At expiration of the term of the Agreement and upon payment to Publisher of all amounts then owing by Customer and any applicable costs of transferring the domain name/URL from Publisher to Customer, Publisher will transfer the domain name/URL to Customer.
Policies. Publisher reserves the right to amend these Additional Terms and Conditions and to establish and revise its standards, policies, practices, specifications, technical requirements and schedules with respect to the Services (collectively, the "Publisher Policies"). Customer agrees that a change in Publisher Policies may be published or linked by or through Publisher and shall not entitle Customer to any reduction in the amounts payable for the Services by Customer to Publisher.
Payment Terms. Customer agrees to pay for the Services as provided in the Agreement. Customer will pay an initial set-up fee and a monthly fee for Publisher's maintenance of the Website.
Website Content and Intellectual Property Rights. All tangible and intangible works of any kind (including, without limitation, text, graphics, images, illustrations, artwork, maps, photographs, fonts, visual and audio recordings, Website, software, codes, HTML and other content, in whatever form or media) designed, developed, created or procured by Publisher in connection with the Services will be the sole and exclusive property of Publisher, except for: (i) "Customer Content," which means all content that Customer provides to Publisher, including, without limitation, listing information, any trade name, trademark, trade secret, service mark, copyright, patent or other intellectual property right, any URL or domain name and any required disclosure, explanation, rule, term or condition of use related to any Advertising and (ii) any content that Publisher licenses from a third party content provider for use in connection with such Services, including, without limitation, graphics, text and photographs (collectively, "Third Party Content"). The use of any and all Third Party Content will be subject to all restrictions and obligations imposed by the third party provider of such content ("Third Party Restrictions").
Customer Content. Customer agrees that Customer will produce and deliver any and all Customer Content in accordance with all applicable specifications, schedules, guidelines, procedures, deadlines, format and technical requirements as Publisher may establish from time to time (collectively, the "Publisher Schedules"). Customer acknowledges that Customer's failure to comply with any Publisher Schedule may cause the Services to be delayed or refused and Customer agrees that Publisher will have no liability for any such delay or refusal. If Publisher determines, in the exercise of its sole discretion, that Customer has violated Customer's obligation to comply with the Publisher Schedules, then Publisher may temporarily and/or permanently suspend its provision of, and Customer's access to and use of, any Services, in whole or in part, without prior notice.
Customer Responsibility. Customer assumes sole responsibility for (i) the protection of the trade names, trademarks, trade secrets, service marks, copyrights, patents and other intellectual property rights in any Customer Content appearing in Advertising or on a Website; (ii) conducting any copyright and trademark searches and other similar activities which may be necessary in relation to any domain name contained in Customer Content (including those that Publisher may register for Customer); and (iii) including appropriate copyright and trademark notices with Customer Content. Customer agrees to ensure the accuracy of all materials provided to Publisher for incorporation on the Website including, without limitation, content, claims, warranties, nature of business and contact information for Customer. Customer further agrees that it is responsible for ensuring that the Website conforms to all local, state and Federal laws.
Publisher Rights. Customer agrees that Publisher will have the continuing right, in the exercise of its sole discretion, to review, select from or among, revise or reject any Customer Content for any reason, including but not limited to unsatisfactory technical quality, inconsistency with any Publisher Policies, or non-compliance with the agreement. Notwithstanding such right, Publisher will have no liability whatsoever to Customer or any third party for any Customer Content included in any Advertising or on a Website and Customer shall be solely and exclusively liable therefore. If Customer provides information that is untrue, inaccurate, incomplete, or Publisher has reasonable grounds to suspect that such information is untrue, inaccurate or incomplete, Publisher, at its sole discretion, may suspend or terminate the Services. Publisher has the right to remove any content at its sole discretion. Customer bears all risk associated with the use of any content.
Disclaimer and Limitation of Liability. Publisher makes no representation, warranty or guarantee, express or implied, concerning the Website or the Services, except as set forth herein. Publisher expressly disclaims all other warranties, express or implied, including without limitation any warranty of merchantability and fitness for a particular purpose. Publisher will not be liable for any consequential, special, indirect, exemplary, punitive, or other damages whether in contract, tort or any other legal theory, even if advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy. Publisher's aggregate liability to Customer is limited to amounts paid or payable to Publisher by Customer for the Services giving rise to the claim. Remedies set forth in this section 9 shall be Customer's sole and exclusive remedies for any claims Customer may have under the Agreement.
Indemnification. Customer shall indemnify and defend Publisher, its agents, affiliates, and licensors from all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees and expenses, and third party claim or liability (collectively, "Liabilities") arising out of Customer's use of the Services and Website or Customer's breach of the agreement. Specifically, Customer agrees to defend, indemnify, and hold harmless Publisher, its agents, affiliates, and licensors from, against, and in respect of: (i) any and all losses, damages or deficiencies resulting from any third party claim in connection with Customer's Website or the URL and (ii) all costs and expenses incident to any and all actions, suits, proceedings, claims, demands, assessments, or judgments in respect thereof regardless of the merit thereof, including reasonable attorneys' fees and expenses.
License. Customer hereby grants to Publisher a perpetual, royalty-free, sub-licensable, non-exclusive right and license to use, copy, record, modify, display, publish, perform, prepare derivate works based on and distribute (for Publisher's sole benefit and in any form or media now known or hereafter developed, and in any and all languages) Customer Content: (i) in connection with the design, development, creation, display and publication of the Website (or any derivative thereof); (ii) in connection with Publisher's provision of Services; and (iii) in any Publisher marketing or promotional materials. Without limiting the generality of the foregoing, Publisher shall have the right (i) to sub-license to third parties any or all of the rights afforded to Publisher in the preceding sentence and (ii) to license to third parties the right to use, copy, record, modify, display, publish, perform and distribute the Website (and any portions thereof) in any form or media now known or hereafter developed, subject to (a) any Third Party Restrictions governing any Third Party Content contained in the Advertising and (b) such other terms and conditions as Publisher may deem appropriate. Publisher and its third party sub-licensees may use any presently existing and future means of communication or transmission in the exercise of any of the rights and licenses granted above. Customer further grants Publisher the right and license to make a reasonable number of archival or back-up copies of the Website as deemed necessary at Publisher's sole discretion. Publisher is not responsible for returning Customer files, documents or other items provided by Customer.
Customer's Additional Representations and Warranties. Customer represents, warrants and covenants that Customer has the necessary rights to provide all information required under the Agreement (including all content, data, data feeds, listings, titles, URLs, descriptions) for use as described in the Agreement, and that all such information and all claims, statements, products and services contained or referenced therein: (a) do not violate any law, statute, ordinance, treaty or regulation or policy or guideline of Publisher; (b) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) are not false, deceptive or misleading; (e) are not defamatory, libelous, slanderous or threatening; and (f) will be free of viruses, worms, bots or other computer programming routines that may potentially damage, interfere with, intercept or expropriate any system data or personal information.
Force Majeure. Publisher shall not be liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond Publisher's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, power outages, supply shortages or the failure of Customer or any third party to perform any commitment relating to the production or delivery of any equipment or material required for Publisher to perform its obligations hereunder.
Availability of Services. Publisher shall use commercially reasonable efforts to attempt to provide the Services, including access to Customer's Website, in a manner that will not disrupt Customer's business. Customer acknowledges and agrees that from time to time the Website may be inaccessible or inoperable for various reasons, including but not limited to (i) maintenance procedures or repairs performed by Publisher; (ii) equipment failures; (iii) congestion of the network; or (iv) interruption of telecommunication or digital transmission link. Customer acknowledges and agrees that Publisher is not liable for these periodic interruptions in Website availability and further acknowledges that Publisher does not guarantee Website accessibility on a continuous and uninterrupted basis.
Suspension or Termination. Publisher reserves the right to deny, terminate, or suspend Services without notice if, in Publisher's sole discretion, the Services are used by Customer in a manner that violates or may violate any custom, use, practice, rule, law, statute or regulation, and Publisher reserves the right to reject, alter, modify, or remove Customer's Website, website domain name, URL address, or any website content (including, but not limited to, any language, words, text, photographs, designs, drawings, graphics, images, symbols, or logos) which Publisher in its sole discretion deems to be (i) infringing on a propriety interest of a third party, including without limitation, any copyright, trademark, domain registration right, trade secret, or patent right, or (ii) stating or implying that Publisher endorses the Customer's products or services, or (iii) illegal, pornographic or obscene. Publisher may, in its sole and exclusive discretion, suspend or terminate Customer's Services and take down Customer's Website without notice if Customer violates any provision of the Agreement or these Additional Terms and Conditions.
Additional Publisher Rights. Publisher shall have the right to display Customer's Website in marketing and promotional materials and on Publisher's website.
Introduction. These Top Placement additional terms and conditions are incorporated into and for a part of this agreement between Customer and Publisher applicable to the Top Placement Services to be provided by Publisher to Customer. In the event of any conflict between these additional terms and conditions and the terms and conditions set forth in the agreement between Publisher and Customer, these additional terms and conditions shall be controlling.
Product Summary. The Top Placement Product is designed for top visibility and top of mind exposure. Many research studies have shown that users tend to have a strong preference for advertisers that appear higher on the search results page. Generally, when an advertiser purchases a Top Placement Product for a given business heading and geography, Customer's Top Placement ad will appear in the top tier of listing results in response to a user search for that business heading (or common variations of that business heading) and geography.
Background. Yellowbook.com is designed to process user requests for information, where users enter data in a "PRODUCT /SERVICE" box or a "NAME OF BUSINESS" box along with a "LOCATION" box and the site responds with results page(s) of listings. The results of each user search is a page that displays listings comprised of local, statewide and national businesses along with possible display advertising. The order of listings is primarily based on relevance of the listings to the user's search as determined by Publisher's search algorithm. In the case of equal relevance, advertisers appear in descending sequence according to the level of internet product (e.g. Gold, INT) purchased by the Customer.
Local; National. The Top Placement Product consists of Local Top Placement Listings and National/Statewide sponsored ads. Local Top Placement listings will appear as one of the first two listing positions on the search results page. The Top Placement Product with national or statewide coverage will appear in the sponsored ad section of the search results page.
Product Market. The Top Placement Product is available for two local advertisers in each market. The market for the local Top Placement Product is determined principally by reference to the geographic scope of Yellowbook print directories. As between the two Top Placement local advertisers in each market, first and second positions are determined on a random basis resulting in each local Top Placement advertiser having an equal chance of being first over time. Product Detail-Variants. The Top Placement Product covers only the specified Top Placement business heading and common synonyms and other variants of that business heading, as determined by Publisher. Example: In the case of the Top Placement product for the "Insurance-Automobile" business heading for the Philadelphia Yellowbook directory, if a user searches for "car insurance" in "Philadelphia", the Top Placement advertiser should appear in one of the first two listing positions in the Local Results Section of the search results page.
Product Detail - Additional Search Terms. A Top Placement listing will not necessarily be returned when a user includes another search term in combination with the Top Placement Product business heading. Example: In the case of the Top Placement Product for the "Plumbers" business heading for the Chicago Yellowbook directory, if a user searches for "Plumber" (or some common variant) in "Chicago", the Top Placement advertiser should appear in one of the first two listing positions in the Local Results Section of the search results page. If, on the other hand, a user searches "Plumber Supply" and "Chicago", the Top Placement advertiser may not appear in the first two listing positions, although the Top Placement advertiser may appear lower on the search results page.
Product Detail - Overlapping Markets. In some cases there will be some overlap of the geographic scope of Yellowbook directories. When a user searches a location which is in the overlapping area, the Top Placement advertisers for each of the overlapping directories will be a "best match". In that event, two of the Top Placement advertisers in the overlapping directory markets will be randomly selected for display. The expectation is that all "best matches," i.e., all Top Placement advertisers in the overlapping markets, will have an equal chance of being displayed in the top two listing positions over time. Example: The Oakland County and Macomb County Yellowbook directories have some overlapping geographic scope, including Plymouth. In the case of the Top Placement Product for the "Florists" business heading for the Oakland County Yellowbook directory, if a user searches for "florist" (or some common variant) in "Plymouth", Top Placement advertisers from both the Oakland County Yellowbook directory and the Macomb County Yellowbook directory will be best matches. Two of the four Top Placement advertisers will be selected at random for the first two listing positions and the two Top Placement advertisers not selected would appear lower on the search results page.
Introduction. These Video Advertising additional terms and conditions are incorporated into and for a part of this agreement between Customer and Publisher applicable to the Video Advertising Services to be provided by Publisher to Customer. In the event of any conflict between these additional terms and conditions and the terms and conditions set forth in the agreement between Publisher and Customer, these additional terms and conditions shall be controlling.
Product Summary. Video ads are the perfect solution for businesses whose physical location, services, products and employees can say it all. Publisher offers several video ad product options:
Custom Video Ads: Custom video ads can combine on-camera interviews, customer testimonials, facility tours, live product demos and customer interaction to create a unique, professionally-produced, commercial quality video ad. Custom video ads can be either 30 or 60 seconds in length.
PhotoMotion Video Ads: PhotoMotion video ads are an easier to produce, cost-effective video product. PhotoMotion video ads combine customer supplied photos, brochures and website images with panning and scanning techniques, background music, professional voice over and basic animation, resulting in a close to 'live' video feeling. Shooting new video is not necessary. PhotoMotion videos ads are up to 30 seconds in length.
Customer Supplied Video Ads: Customers may supply their own video commercials for display on yellowbook.com. Customer-supplied videos are subject to approval by Publisher for content. Customer supplied videos must meet the following technical requirements: up to 60 seconds in length; up to 5M file size; up to 300 kbps; standard DVD format or any other video codec format; and 720 x 480 resolution. Customer supplied video ads over 60 seconds will require editing at an additional fee of $300.00 to fit the 60 seconds allotted.
Placement Product. The video ad product MUST be associated with yellowbook.com Silver, Gold and/or Top Placement products; hence one of these products MUST be purchased with the video ad. Silver, Gold and Top Placement products, like most products, are for a 12-month contract.
What the User Will See. A link to the video ad will be attached to Customer's Yellowbook.com listing/profile. When the user clicks on the link, the video ad will begin to play alongside the other information about your business. The video player look and feel and the video link location, size and design will be determined by Publisher and may change from time to time.
Custom Videos.
Day of the Shoot - Advertisers will be contacted to arrange for the time and place of the video shoot. A welcome package with details on how to prepare and what to expect on the day of the shoot will be sent to Customer before the day of the shoot. A video professional will arrive at Customer's premises and will work with Customer to highlight those special qualities that make Customer's business stand out from its competitors. Approximately one to two hours will be spent by the video professional at Customer's location.
Location of the Shoot - Only one location is allowed in the video shoot. Multiple locations will involve an additional charge.
Creative Control/Delivery - Publisher has overall creative control of the video content. Advertisers can expect to see their completed Custom video ads approximately 20 business days after the day of the shoot. Changes will not be available for any custom video ad, except for factual errors found.
Video Preview - Publisher will provide Customer with email notification and a link to preview the video ad before it goes online. Changes will only be allowed to correct factual errors. Approximately five business days after email notification the video ad will "go live" on yellowbook.com
Video Ownership - At the end of the 12-month contract, Customer will obtain ownership of the finished video ad. Such ownership includes a royalty-free license to the video ad background music and Publisher - provided graphics and images (solely for use in the video ad). The video ad is subject to a permanent license in favor of Yellowbook to use all or any portion of the video ad in Publisher's business. There will be additional charges for an encoded copy of the video ad or an uncompressed high quality copy of the video ad.
Video Shoot Cancellation Policy - Advertisers will receive a confirmation call from the video professional the day prior to the video shoot. Any cancellation of a scheduled video ad shoot requires notice at least 24 hours prior to the day of the scheduled video shoot. Advertisers are required to call their video professional at the number supplied in the welcome package confirming the date and time of the shoot. Videos canceled without notice at least 24 hours prior to the day of the scheduled video shoot are subject to a $200.00 cancellation fee.
Professional Script and Voice Over - Publisher will provide professional script and voice over services for Custom video ads for an additional charge of $200.00.
Re-Shoot - An advertiser may shoot a replacement Custom video ad any time within the 12-month contract period for an additional charge of $900.00.
Multiple Shoot Locations - One shoot location is included in the Custom video ad price. Multiple location options will be available for an additional charge of $150.00 per added location within a 15 minute drive of the first location.
Video Ad Contract Cancellation Policy. All video ad products require an initial 12-month contract. Advertisers who cancel their Custom video ad product prior to the end of the 12-month contract term will be charged an early cancellation fee of $500.00 to cover Publisher's expenses in producing the video ad. Cancellation of a customer supplied video ad will not result in a cancellation fee. Please note that, although the Custom video ad portion of the contract may be cancelled, the associated Silver, Gold and/or Top Placement product contract may not be cancelled prior to the end of the 12-month contract period.
Video Ad Copies. Publisher will make a 'high resolution' copy of a Custom video ad available to advertisers six (6) months following the "go-live" date for an additional charge of $500.00. Upon request Publisher will provide an advertiser with the completed Custom video ad, PhotoMotion video ad or Customer supplied video ad URL. URL hosting will terminate when the video ad ceases to run on yellowbook.com.
Yellowbook Branding Watermark. The yellowbook.com watermark will be added to ALL Custom video ads, PhotoMotion video ads and Customer supplied video ads.
Right to Use Trademarks and Images; Permits and Licenses; No Endorsement; Indemnification. The right to use any trademark, trade name, or copyrighted material include in any video ad is the responsibility of Customer. Customer also must secure the right to use any artwork or illustration, or the portrait or picture of any person shown in the video ad. Customer will notify Yellowbook, in writing, if Customer should cease to have any such right. Customer assumes sole responsibility for the protection of its intellectual property included in its video ad. Customer represents and warrants that it holds all necessary permits and licenses to provide the products and services identified in the video ad. Customer agrees that it is responsible for ensuring that its video ad complies with any laws or regulations that may be applicable to its business. Customer understands and agrees that Publisher does not approve or endorse any of Customer's products or services identified in the video ad. Customer agrees to indemnify Publisher (and its employees, affiliates and agents) against, and hold Publisher (and its employees, affiliate and agents) harmless from, all liability, claims, demands, suits, or causes of action, whether or not partially attributable to the negligence of Publisher, and will pay all expenses, including reasonable attorneys' fees, settlements and/or judgments incurred by Publisher in the defense thereof, arising out of advertiser's breach or alleged breach of the foregoing requirements.
Introduction. These Virtual Tour additional terms and conditions are incorporated into and for a part of this agreement between Customer and Publisher applicable to the Virtual Tour Services to be provided by Publisher to Customer. In the event of any conflict between these additional terms and conditions and the terms and conditions set forth in the agreement between Publisher and Customer, these additional terms and conditions shall be controlling.
Product Summary. Virtual Tours are web-based 360 degree tours of a business. They allow users to "step inside" a business and look around, all from their computer. This helps users to make a decision about patronizing a business by setting the expectation regarding a business they are unfamiliar with. Virtual Tours help make potential clients feel like repeat customers. Publisher offers several Virtual Tour product options:
Interior: This version of the Virtual Tour includes two (2) 360 degree panoramic shots from inside a business and can include up to 2 interactive elements (images to zoom in on).
Basic: This version of the Virtual Tour includes three (3) 360 degree panoramic shots from inside or outside a business and can include up to 2 interactive elements (images to zoom in on).
Premium: This version of the Virtual Tour includes four (4) 360 degree panoramic shots from inside or outside a business and can include up to 2 interactive elements (images to zoom in on).
Placement Product. The Virtual Tour product MUST be associated with a yellowbook.com Silver, Gold and/or Top Placement product (i.e., one of these products MUST be purchased along with the Virtual Tour, either a la carte or as part of a bundle). Silver, Gold and Top Placement products and all bundles require a 12-month contract.
What the User Will See. A link to the Virtual Tour will be attached to Customer's Yellowbook.com listing which is displayed on both the results page and business details page. When the user clicks on the link, the Virtual Tour will be displayed. The Virtual Tour look and feel, and the link location, size and design will be determined by Publisher and may change from time to time in Publisher's sole discretion. If Customer has a website created by Publisher, the Virtual Tour may be included on the website as well.
Custom Virtual Tour
Photo Shoot - Advertisers will receive a confirmation email from the photographer 48 hours prior to the shoot.
Photo Shoot Cancellation Policy - Any cancellation of a scheduled shoot requires notice at least 24 hours prior to the scheduled shoot. Advertisers are required to call or email the photographer at the number/email address supplied in the email confirming the date and time of the shoot. Any photo shoot canceled without notice at least 24 hours prior to the day of the scheduled photo shoot is subject to a $100.00 cancellation fee.
Re-Shoot - An Advertiser may shoot a replacement Virtual Tour for an additional charge of $75.00 per room/shot.
Creative Control/Delivery - Publisher and its vendor, EveryScape or its authorized agent (“Vendor”) have overall creative control of the Virtual Tour content. Publisher will provide Customer with email notification and a link to preview the Virtual Tour before it goes online. Approximately five business days after email notification the tour will "go live" on yellowbook.com and Customer will begin to be billed for the Virtual Tour.
Virtual Tour Contract Cancellation Policy. All Virtual Tour products require an initial 12-month contract.
Yellowbook Branding Watermark. The yellowbook.com watermark will be added to all Advertiser Virtual Tours.
Virtual Tour Ownership. Vendor retains all right, title and interest in and to the Virtual Tour. Vendor does not retain the right, title, or interest to any Advertiser Marks (brand names, logos, service marks, or trademarks owned by Advertiser) contained in the Virtual Tour. Vendor retains all right, title and interest in and to its trademarks, service marks, logos, website(s) and technology (including all content, data, domain names, user interfaces, "look and feel," materials and technology contained thereon or used in connection therewith), and all intellectual property rights associated with the foregoing.
Photo Shoot/Virtual Tour Creation. Advertiser grants Publisher and Vendor permission to: (a) come onto the Customer's premises and take pictures of their business location (including any artwork or patrons), (b) convert such footage into a Virtual Tour consisting of 1-10 panoramic photos, (c) distribute that Virtual Tour and/or associated interactive element(s) through www.everyscape.com, www.yellowbook.com and any other extended online distribution channel(s) Vendor and/or Publisher deem appropriate in their sole discretion (d) use Advertiser's brand names, logos, service marks and trademarks in connection with distribution and display of the Virtual Tour and interactive element and (e) use excerpts of Advertiser's Virtual Tour for demonstration and promotional purposes.
Right to Use Trademarks and Images; Permits and Licenses; No Endorsement; Indemnification. The right to use any trademark, trade name, or copyrighted material included in any Virtual Tour and provided to Publisher or the Vendor by Customer is the responsibility of Customer. Customer also must secure the right to use any artwork or illustration, or the portrait or picture of any person shown in the Virtual Tour. Customer will notify Publisher, in writing, if Customer should cease to have any such right. Customer assumes sole responsibility for the protection of its intellectual property included in its Virtual Tour. Customer represents and warrants that it holds all necessary permits and licenses to provide the products and services identified in the Virtual Tour. Customer also affirms that its business location does not contain any libelous, obscene or otherwise unlawful material, and that filming of its business location and use of the Virtual Tour as outlined above will not violate the rights of any person or entity or cause Publisher or Vendor to incur any liability for payments to any third party. Customer agrees that it is responsible for ensuring that its Virtual Tour complies with any laws or regulations that may be applicable to its business. Customer understands and agrees that Publisher does not approve or endorse any of the Customer's products or services identified in the Virtual Tour. Customer agrees to indemnify Publisher (and its employees, affiliates and agents) and Vendor against, and hold Publisher (and its employees, affiliate and agents) and Vendor harmless from, all liability, claims, demands, suits, or causes of action, whether or not partially attributable to the negligence of Publisher, and will pay all expenses, including reasonable attorneys' fees, settlements and/or judgments incurred in the defense thereof, arising out of Customer's breach or alleged breach of the foregoing requirements.
No Warranties. PUBLISHER AND VENDOR DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. IN NO EVENT SHALL PUBLISHER OR VENDOR BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY INCLUDING NEGLIGENCE AND STRICT LIABILITY.
Breach. Publisher and Vendor reserve the right to terminate this Agreement and to cease displaying the Virtual Tour in the event of breach by Advertiser that is not cured within thirty (30) days of written notice from Publisher. Any such termination shall be without waiver or prejudice to Publisher's or Vendor's right to payment from Customer and other rights under applicable law.
Third Party Beneficiary. Customer acknowledges and agrees that Vendor shall be a third party beneficiary of this Agreement.
Introduction. These Mobile Banner additional terms and conditions are incorporated into and for a part of this agreement between Customer and Publisher applicable to the Mobile Banner Services to be provided by Publisher to Customer. In the event of any conflict between these additional terms and conditions and the terms and conditions set forth in the agreement between Publisher and Customer, these additional terms and conditions shall be controlling.
Product Summary. The Mobile Banner Product allows Customers to take advantage of valuable advertising space on mobile devices. There are two types of Mobile Banner Products that can be purchased:
Category Banners: These will be associated with the category the user searched (e.g., a restaurant banner will appear when the user searches for restaurants in their area). These will be sold per heading, per market.
Run of Site Banners: These will appear in open inventory spots throughout the mobile application and are available per market.
Product Market. The Mobile Banner Product is available for up to four local Customers in each market, depending on heading. The market for the local Category or Run of Site Mobile Banner Product is determined principally by reference to the geographic scope of Yellowbook print directories. As between the Category and Run of Site Mobile Banner, Category Banners, when available, will display first with Category Banner Customers rotating so as to have an equal chance of being first over time. Run of Site Banners will appear only if there are no Category Banners sold into that heading and market. Product Detail-Variants. The Category Mobile Banner Product covers only the specified Category Mobile Banner business heading and common synonyms and other variants of that business heading, as determined by Publisher. Example: In the case of the Category Mobile Banner Product for the "Insurance-Automobile" business heading for the Philadelphia Yellowbook directory, if a user searches for "car insurance" in "Philadelphia", the Category Banner client should appear, in rotation, in the featured display location within the search results.
Product Detail - Additional Search Terms. A Category Mobile Banner will not necessarily be returned when a user includes another search term in combination with the Category Mobile Banner Product business heading. Example: In the case of the Category Mobile Banner Product purchased in the “Insurance-Automobile” heading, if a user searches “Renters Insurance” the Customer's Category Mobile Banner will not appear in rotation. If no Category Banners have been sold in an associated heading to “Renters Insurance” a Run of Site or other banner will appear in the featured display location.
Product Detail - Overlapping Markets. In some cases there will be some overlap of the geographic scope of Yellowbook directories. When a user searches a location which is in the overlapping area, the Category Mobile Banner clients for each of the overlapping directories will be a "best match". In that event, one of the Category Mobile Banner Customers in the overlapping directory markets will be randomly selected for display. The expectation is that all "best matches," i.e., all Category Mobile Banner clients in the overlapping markets, will have an equal chance of being displayed in the featured display positions over time. Example: The Oakland County and Macomb County Yellowbook directories have some overlapping geographic scope, including Plymouth. In the case of the Category Mobile Banner Product for the "Florists" business heading for the Oakland County Yellowbook directory, if a user searches for "florist" (or some common variant) in "Plymouth", Category Mobile Banner clients from both the Oakland County Yellowbook directory and the Macomb County Yellowbook directory will be best matches. One of the four Category Mobile Banner clients will be selected at random for the featured display position.
Mobile Devices. The Mobile Banner Product will be displayed on Android™, iPhone®, Windows® Phone 7, and mobile web. The Mobile Banner Product will not be displayed on certain other devices. Publisher shall not be liable for any default or delay in performance of any of its obligations under this agreement if such default or delay is caused by the failure of certain mobile devices to display the Mobile Banner Product or failure of service of a mobile device. Publisher does not guarantee availability of mobile device service or access to the network. iPhone is a trademark of Apple Inc., registered in the U.S. and other countries. Android is a trademark of Google Inc. Use of this trademark is subject to Google permissions. Windows is a registered trademark of Microsoft Corporation in the United States and/or other countries.
Introduction:These Chatterhub additional terms and conditions are incorporated into and for a part of this agreement between Customer and Publisher applicable to the Chatterhub Services to be provided by Publisher to Customer. In the event of any conflict between these additional terms and conditions and the terms and conditions set forth in the agreement between Publisher and Customer, these additional terms and conditions shall be controlling.
Description of the Service:ChatterHub is a reputation monitoring service that tracks what is being said online about your business. Publisher will generate reports ("Reports") in connection with ChatterHub service (the service) accessible on the Yellowbook360 Business Center website.
Publisher’s Responsibilities:Publisher’s ability to locate Internet content concerning the Customer is limited by the quality of information provided by the Customer. Publisher does not guarantee that we will locate or communicate to Customer every example or all examples of Internet content about the Customer, nor does Publisher guarantee the complete accuracy of Reports generated in connection with the Service.
Availability of Service:Publisher shall use commercially reasonable efforts to provide the Service. Customer acknowledges and agrees that from time to time the Service may not be available for various reasons, including but not limited to: (1) maintenance procedures or repairs performed by Publisher, (2) equipment failures, (3) congestion of the network, (4) interruption of telecommunication or digital transmission links, and (5) events beyond Publisher’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Publisher servers are located or co-located.
Customer Representations and Warranties:Customer represents and warrants that the Service is being provided to the same person or entity that will be subject to monitoring by Chatterhub. Customer represents and warrants that all information provided in connection with the Service is true and accurate, including but not limited to representations of Customer's identity. You agree to release and hold harmless Publisher from any loss or damage caused to Customer arising out of false or inaccurate information provided to Publisher. Further, you agree to indemnify Publisher against any loss or damage caused to Publisher resulting from fraudulent or malicious representations of information made to Publisher, including but not limited to false or fraudulent representations of Customer's identity. Customer further agrees that ChatterHub shall not be used for illegal activities, or activities that Publisher deems improper for any reason whatsoever in its sole discretion.
Disclaimer and Limitation of Liability:THE SERVICE, THE REPORTS, AND ALL RELATED AND ANCILLARY SERVICES ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY PUBLISHER OR ITS AFFILIATES, AGENTS OR SUPPLIERS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. PUBLISHER DOES NOT WARRANT THAT THE SERVICE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. NEITHER PUBLISHER NOR ANY OF ITS AFFILIATES, AGENTS OR SERVICE PROVIDERS WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF PUBLISHER AND/OR ITS AFFILIATES, AGENTS OR SERVICE PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnification:You agree to indemnify, hold harmless and defend Publisher and its affiliates, at your expense, any and all third-party claims, actions, proceedings, and suits brought against Publisher or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorney's fees and other litigation expenses) incurred by Publisher or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any of the ChatterHub terms or conditions, (ii) your fraudulent or malicious use of the Service, (iii) your violation of applicable laws, rules or regulations in connection with the Service. In such a case, Publisher will provide you with written or electronic notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. Publisher reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
IntroductionThis Search Engine Optimization Services Agreement (this "Agreement") is hereby entered into between Customer and Publisher. Publisher executes an online marketing strategy that will impact Customer's website related to its organic rankings in the major search engines. It is agreed that Publisher’s efforts will be to promote the keyword phrases combined with GEO terms set forth above in accordance with the terms and conditions contained in this Agreement.
SEO ServicesPublisher agrees to provide Customer with Search Engine Optimization Services (the "SEO Services") as described in this Agreement. Publisher is authorized to use the specific keywords and/or phrases combined with the GEO terms set forth above for development, improving the ranking of, and/or positioning the contents of Customer's URL in the major search engines. Currently, the major search engines are Google, Yahoo and Bing. Publisher’s SEO Services will include but are not limited to: publishing relevant content on third-party websites to improve Customer's ranking factor; editing and/or optimizing Customer's website for various html tags, metadata, page titles and page text as necessary; providing analysis and recommendations on optimal website structure, navigation and code for best SEO purposes; recommending, as required, additional web pages or content for the purpose of ranking keyword/phrase searches in the major search engines; and researching additional keywords and phrases to select appropriate, relevant search terms that provide authoritative ranking factor.
Customer ContractCustomer is entering into Publisher’s standard form of customer contract (the "Contract") simultaneously with Customer entering into this Agreement. The parties agree that the terms and conditions of the Contract shall apply, except in the event of any conflict between the terms of this Agreement and the terms of the Contract, in which case, the terms of this Agreement shall be controlling.
FeesCustomer agrees to pay Publisher a monthly fee for the SEO Services as set forth in the Contract. Fees are payable monthly in advance. Customer shall authorize payment to Publisher by automatic debit to Customer's credit card or checking account. Publisher may suspend the SEO Services in the event that payment of such fee is not received by the applicable due date.
Term; Autorenewal; CancellationThe term of this Agreement ("Term") is as follows: (a) for Presence Plus customers, the twelve (12) month period commencing on the Start Date, and (b) for Presence Elite customers, the six (6) month period commencing on the Start Date, in each case ((a) or (b)) after which this Agreement will renew automatically on a month-to-month basis. Customer may cancel the SEO Services at any time following the initial Term on thirty (30) days prior written notice to Publisher. The Start Date is the date on which any SEO Services are first provided.
Customer ResponsibilitiesPublisher is authorized to use the specific keywords and/or phrases specified by Customer on the SEO Keyword Phrases and GEO Terms List set forth above for improving the ranking of, and/or the positioning of Customer's URL in the search engines and/or directories that are used by the general public. Publisher is also authorized to use all information provided by Customer to assist in copywriting and programming as directed by Customer. For the purposes of providing these services, Customer agrees:To provide, if possible, remote access to Customer's website files using FTP Software to allow Publisher to upload new pages and make mutually agreed changes in order to achieve and maintain positioning. Customer must provide Publisher with all current passwords and user IDs needed for Publisher to gain such FTP remote access. Publisher will maintain the confidentiality of the passwords and user IDs.That if FTP remote access is not possible, Customer agrees to provide an email address of a technician who can upload changes to Customer's website requested by Publisher on a timely basis. Publisher cannot be held responsible for delays once the technician has been notified of the upload request. A copy of the request will be sent to Customer.To provide permission and access to Customer's website to install proper analytics and search engine optimization codes. If codes cannot be installed, Publisher will not be able to provide reports to Customer.That Publisher will not be responsible for lost data, corrupt servers, or any other occurrence that may or may not be a result of work performed by an employee or contractor of Publisher.To provide access to raw log files or existing statistical reporting to facilitate website traffic reporting.To authorize Publisher to use all Customer logos, trademarks, website images, etc. for use in creating additional pages (if needed) and any other uses that may be deemed necessary.To work with Publisher to add additional text content to Customer's website, as necessary.To provide, if applicable, access to Customer's social media accounts (such as Facebook and Twitter) to allow Publisher to post content on Customers behalf.With regard to video ad postings, to request changes within five (5) business days of Customer's receipt of the email notification containing a link to preview the video (i.e. video proof). If a change request is submitted, Customer agrees to request any additional changes within two (2) business days of receipt of the email notification containing a link to the second video proof. Any subsequent changes shall be made to live videos, if needed.
Customer AcknowledgmentsWith respect to the SEO Services, Customer acknowledges and agrees as follows:Publisher has no control over the policies of search engines with respect to the types of websites and/or content that they accept now or in the future. Customer's website may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, Publisher does not guarantee positions or traffic levels for any particular keywords, phrases or search terms but will make reasonable efforts to increase rankings.Occasionally, search engines will stop accepting submissions for an indefinite period of time. Publisher does not control search engine policies, nor does Publisher claim to have a special partnership or relationship with any of the search engines.Occasionally, search engines will drop listings for no apparent or predictable reason. Often listings will "reappear" without any additional submissions. Should the listing not reappear, Publisher will resubmit Customer's website and/or relevant listings information based on the current policies of the search engine in question.Publisher reserves the right, but has no obligation, to consult with Customer regarding social media content and posting.Publisher is not responsible for changes made to Customer's website by other parties that adversely affect the search engine or directory rankings of Customer's website.
Reports and AnalysisPublisher will provide Customer with regular reports in accordance with the level of service purchased by Customer. Specifically, Presence Plus customers shall receive activity reports on a quarterly basis. Presence Elite customers shall receive activity and ranking reports on a monthly basis.
DISCLAIMER OF WARRANTIESEXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, PUBLISHER DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS TO CUSTOMER OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED ARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. FURTHER, PUBLISHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR THAT THERE WIL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF DATA OR TRANSMITTED INFORMATION.
LIMITATION OF LIABILITYIN NO EVENT SHALL PUBLISHER, OR ANY AFFILIATE, AGENT OR SERVICE PROVIDER OF PUBLISHER, BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE) WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF PUBLISHER AND/OR ITS AFFILIATE, AGENT OR SERVICE PROVIDERHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF PUBLISHER, OR ANY OF PUBLISHER’S AFFILIATES, AGENTS OR SERVICE PROVIDERS,TO CUSTOMER UNDER ANY AND ALL CIRCUMSTANCES EXCEED THE AGGREGATE SEO SERVICE FEES PAID BY CUSTOMER TO PUBLISHER DURING THE SIX MONTHS PRECEDING THE DATE OF OCCURRENCE OF THE ACT OR OMMISSION GIVING RISE TO THE LIABILITY.
Complete AgreementThis Agreement and the Contract sets forth the entire agreement between Publisher and Customer and supersedes any and all prior oral and written agreements between them. This Agreement may not be altered, amended or modified except by a further writing signed by each of the parties. Customer acknowledges that the sales representative of Publisher has no authority to make any changes to this Agreement or to commit Publisher to any guarantee of performance not expressly set forth in this Agreement. Customer acknowledges and agrees that Customer has read this SEO Services Agreement in its entirety, and that the terms and conditions set forth or referred to herein are agreed to by the Customer.
