Legal
Advertiser Standard Terms and Conditions
These Advertiser Standard Terms and Conditions ("Terms"), together with the terms set forth in any IO (as defined below), constitute a legally binding and enforceable Advertising Service (as defined below) agreement ("Agreement") between (1) the person agreeing (and upon whose behalf the person agrees) to these Terms or any document referencing these Terms by: signing such document, or accepting these Terms electronically or by Participating (as defined below) ("Advertiser"); and (2) as specified in the corresponding IO: Marchex, Inc., a Delaware corporation ("Marchex"), or one of the following wholly-owned subsidiaries of Marchex: Enhance Interactive, Inc.; goClick.com, Inc.; TrafficLeader, Inc.; IndustryBrains, LLC; or MDNH, Inc. (as applicable, the "Company").
1. POLICIES. Use of the Advertising Service (as defined below) is subject to applicable Company and Distribution Partner (as defined below) policies, including the Marchex Traffic Quality Statement (http://www.marchex.com/aboutus/traffic-quality-statement.html); and Marchex Advertising Guidelines (http://www.marchex.com/aboutus/advertising-guidelines.html) (collectively, "Policies"). Policies may be modified at any time without notice. Company may reject or modify Ad Content (as defined below) to comply with Policies.
2. SELECTED DEFINITIONS. For the purpose of these Terms, "Ad" means any Ad Content (as defined below) or other advertising material published pursuant to this Agreement. "Ad Content" means any content, information, keyword, search listing or URL which forms part of, is displayed, or is reachable by the user in connection with the Advertising Service. "Advertising Service" means the advertising service provided to Advertiser pursuant to this Agreement. "Company Network" means the network of Company owned or operated websites, and websites owned or operated by distribution partners and affiliates through which Company makes the Advertising Service available (each third party distribution partner or affiliate being referred to herein as "Distribution Partner"). "IO" means a written or online insertion order or similar document agreed to by the parties (including via an account management system). "Participating" means provision of the Advertising Service to Advertiser, effective as of the earlier of: (a) the display of the first Ad; or (b) Advertiser's execution of an IO.
3. CREDIT REPORTING. Advertiser authorizes Company and any Distribution Partner to use credit reporting agencies to evaluate Advertiser's credit history. Upon request, Advertiser shall provide Company or Distribution Partner with any necessary information or consent.
4. CALCULATIONS.
a.) Generally. Notwithstanding anything to the contrary herein or contained in any separate writing, Advertiser acknowledges and agrees Company is solely responsible for tracking and calculating the performance, delivery, and other metrics in connection with the Advertising Service, including without limitation: click-throughs ("CTs"), page views, and/or impressions delivered, the applicable CT and/or cost per thousand ("CPM") price(s) (or other pricing) and all other traffic measurements and data. Advertiser further understands and agrees such measurements and data will be the only and definitive measure thereof. Additionally, in an effort to detect, identify, and eliminate low quality traffic (including that generated by automated tools, robots or other deceptive software) from the Company Network, Company may make use of filtering and monitoring techniques.
b.) Overruns. Due to the various frequencies of search engines and directories refreshing their indexes, occasionally campaign overruns may occur. Overruns, not to exceed ten percent (10%) of the amount ordered, as measured on a calendar monthly basis, shall constitute delivery of a valid and authorized Advertising Service under this Agreement, and Advertiser shall be obligated to make payment up to the aforementioned 10% overrun maximum. Overruns will be billed at the applicable pricing rate (e.g., CPM or CT) for the Advertising Service delivered. Additionally, to the limited extent Advertiser has contracted with TrafficLeader, Inc., as an agreed upon allocation of costs, irrespective of the retail amount of any media spend, TrafficLeader, Inc. may in some circumstances allocate up to $0.07 of the total agreed pricing to revenue-per-thousand tracking or other administrative services; provided, however, that such allocation shall not alter the total payment and pricing rate obligations of Advertiser set forth on the IO.
c.) Latency. Some information or data provided to Company by Advertiser may not be processed on a real-time basis and may be subject to the latency of the Internet, the Company Network, and Distribution Partner websites and search engines. Furthermore, the effectiveness (and time and date of effectiveness) of all information, pricing terms and data (including any and all amendments or supplements thereto) provided to Company by Advertiser may be subject to the prior acceptance of Company.
d.) Usage Statistics. Company may provide Advertiser with online access to usage statistics. Usage statistics shall not constitute a definitive expression of the amounts owed for Advertising Services rendered.
5. PAYMENT.
a.) Obligation to Pay. Advertiser agrees to promptly pay all advertising fees charged to it by Company, including any applicable taxes or charges imposed by any governmental entity, in accordance with this Agreement. If Advertiser utilizes Company's account management service, then the applicable pricing rate (e.g., CPM, CT) shall be set by Company. To the extent Ads are placed on Distribution Partner websites or search engines, Company shall be deemed Advertiser's purchasing, paying and transaction agent, with express authority to enter into such Distribution Partner agreements as may be necessary to provide the Advertising Services, and Advertiser shall be the sole obligor with respect to amounts and obligations arising from any such agreement. Upon Company's request, Advertiser will make available to any interested party a written confirmation of such agency relationship.
b.) Credit Card Provisions (if applicable).
- i.) Auto-Renew Service. If Advertiser participates in the Advertising Service using the Auto-Renew or "Continuous Traffic" payment plan, Advertiser authorizes Company to automatically charge its credit card the Auto-Renew payment amount selected by Advertiser (the "Auto-Renew Amount") whenever Advertiser's account has: less than ten dollars ($10); five (5) days of advertising funds remaining; or twenty-five percent (25%) of the total Auto-Renew Amount remaining, as specified in the IO (an "Auto-Renew Event"). Advertiser understands that heavy traffic may result in multiple charges to its account each month. If Advertiser is required to participate in the Auto-Renew Service, it may opt to instead maintain a deposit with Company.
- ii.) Fixed Payment. If Advertiser chooses the monthly "Fixed Payment" plan, Advertiser authorizes Company to automatically charge its credit card the fixed payment amount indicated by Advertiser in the IO (the "Fixed Amount") upon Advertiser's registration and thereafter on each monthly anniversary of Advertiser's registration (the "Charge Date"). At such time as the advertising fees incurred equal or exceed the Fixed Amount, Company shall suspend the display of any Ad(s) until the next Charge Date.
- iii.) Pay-As-You-Go. If Advertiser chooses the "Pay-As-You-Go" plan, at such time as the advertising fees incurred equal or exceed Advertiser's account balance, Company will suspend the Advertising Service unless and until Advertiser authorizes Company to replenish its account. Company will notify Advertiser when its account has five (5) days of funds remaining.
Advertiser authorizes Company to charge its credit card for any amount owed under this Agreement. Company may notify Advertiser each time its credit card is charged. If Company is unable to collect owed amounts from Advertiser's credit card, in addition to any additional charges, Advertiser shall pay Company an insufficient funds fee equal to five percent (5%) of the total amount due.
c.) Payment by Invoice (if applicable). Advertiser agrees to promptly pay Company (and in no event later than thirty (30) days from the invoice date) all charges to its account in United States dollars, in accordance with this Agreement.
d.) Failure to Promptly Pay Amounts Owed. If Company is unable to charge Advertiser's credit card, there is a chargeback, or Advertiser otherwise fails to promptly pay any charge, irrespective of the payment method utilized, Advertiser may charge a monthly late payment fee equal to one and one-half percent (1.5%) of the owing balance or the highest rate allowed by law, if lower. Additionally, Company may charge an overdue payment penalty fee. Termination of this Agreement and/or payment of late payment charges shall not prejudice any other rights or remedies that may be available to Company. Advertiser agrees it is responsible for all reasonable expenses and attorneys' fees Company incurs to collect payments owed.
e.) Payment Disputes. To the fullest extent permitted by law, Advertiser waives all claims relating to any payment dispute (including without limitation claims for charges based on suspected non- qualifying CTs) which it does not notify to Company within five (5) days following the month in which the charge was incurred. The resolution of any payment dispute will be determined by Company in its sole discretion, and Company has no obligation to provide a particular remedy to Advertiser. Refunds (if any) are at Company's discretion and shall only be in the form of advertising credit.
f.) Non-Refundable Amounts. The Advertising Service may be subject to a one-time non- refundable account service fee. Company may retain as an account service fee up to two hundred dollars ($200) of the balance of Advertiser's account if such account remains idle for six (6) months or more.
6. PROMOTIONS. From time to time Company may add placement credits to Advertiser's account. Such placement credits may cause more favorable placement or positioning, resulting in increased CTs and/or impressions. However, unless Advertiser specifically elects to change the CPM or CPC on selected keywords, Advertiser will not pay any increased CPC or CPM which would otherwise result from such placement. Additionally, Advertiser may be eligible to participate in bonus programs which Company may establish from time to time. The establishment and duration of any such bonus program, as well as the terms and conditions thereof, shall be determined by Company. Advertiser will be included in any applicable bonus programs. Any account credits received by Advertiser as part of such programs are discretionary, non-refundable, and revocable. If Advertiser signs up with Company with a promotional rate, Advertiser agrees to any additional terms applicable to such rate. Once the promotion has expired or is terminated by Company, the standard rates shall apply.
7. COMPANY NETWORK PLACEMENT; NON-ADVERTISER PROPERTY; MODIFICATIONS.
a.) Company Network Placement. The Ad(s) may be placed or delivered on any Web site throughout the Company Network, and Advertiser authorizes and consents to all such placements. Company cannot guarantee inclusion in the Company Network nor within the published results of any particular Distribution Partner.
b.) Advertiser Access. Advertiser may access Company websites and/or (upon Company approval) the Company application program interface ("API") solely to manage Advertiser's account. Advertiser will protect any passwords or other credentials associated with Advertiser's account and takes full responsibility for Advertiser's own and third party use of Advertiser's account. Advertiser may not disseminate any information on the Company websites, nor, with the exception of those automated means expressly made available by Company (if any), use any automated means to access the Company websites, including without limitation, agents, scripts, robots, or spiders. Advertiser agrees not to interfere with the proper working of any Company website.
c.) Ownership of Non-Advertiser Property. Title and full ownership rights in and to the Company Network, together with any and all ideas, concepts, computer programs and other technology supporting or otherwise relating to Company's operation of the Advertising Service and Company Network (collectively, the "Company Materials") shall remain at all times solely with Company and/or the respective manufacturer or author. Advertiser has not acquired any ownership interest in the Company Materials and will not acquire any ownership interest in the Company Materials by reason of this Agreement.
d.) Modifications. At any time, Company may make immaterial modifications to the Advertising Service (including without limitation, the look and feel, and the functionality of any API), or to the pricing and spend provisions applicable to the Advertising Service. Advertiser's sole remedy with respect to any modification is to terminate this Agreement or suspend or cancel its account(s). Advertiser's continued use of the Advertising Service following a modification shall constitute its consent thereto.
8. SUBMISSIONS. Violation of Policies may result in termination of Advertiser's account without refund for any charges already incurred. Company reserves the right to include in each of Advertiser's keyword and/or paid listing campaigns related search terms and/or category combinations derived from the search terms and descriptions Advertiser submits to Company. Advertiser acknowledges that certain Advertising Services may include the creation of Ads and keywords, which shall be subject to the same Advertiser obligations and assumptions. Additionally, Company may modify, replace, or supplement keywords based on quality search practices, industry standards, Policies, or performance issues, including without limitation: the use of methodologies that correct misspellings, combining singular and plural terms and filtering inappropriate terms. Company reserves the right to update and change these methodologies in its sole discretion. Furthermore, Advertiser acknowledges and agrees that any Ad shall be subject to any additional standards, practices and/or methodologies employed by a Distribution Partner. Company shall be authorized (but shall have no obligation) to make such changes to the Ad and its keywords to comply with any Distribution Partner requirements or restrictions.
9. REDIRECTION OF TRAFFIC. Advertiser understands and acknowledges that it will receive filtered and unfiltered traffic under this Agreement. In Company's ongoing effort to address traffic quality, Company actively screens and monitors Company Network traffic. As a result of these efforts, Advertiser may not be charged for certain clicks which Company has determined do not meet its quality standards. If Advertiser forwards Company Network clicks to third parties it acknowledges that it alone bears the entire risk associated with such forwarding. Company is not responsible for any complaints, lack of payment, or other damage suffered by Advertiser as a result of Advertiser forwarding clicks received from Company to a third party.
10. CONFIDENTIALITY. "Confidential Information" includes: (a) Ads, prior to publication; (b) these Terms; (c) any usage statistics disclosed by Company; (d) results, data, or performance information relating to the Advertising Service or any Company-provided service; and (e) any Company proprietary information shared pursuant to this Agreement, including without limitation, technology, process, Company Materials, and know-how. Confidential Information also includes Company provided information which, under the circumstances surrounding its disclosure would be reasonably deemed confidential, or that which is designated "confidential", "proprietary" or some similar designation by Company, whether upon disclosure or thereafter. During the term of this Agreement, and for a period of two (2) years following the termination or expiration of this Agreement, Advertiser will not use nor disclose any Confidential Information, except to an employee or agent who has a need to know same, and who is bound by confidentiality obligations similar to those contained in this Section 10. Advertiser may not use any portion of any Confidential Information for any purpose other than those provided for under this Agreement. In addition, within thirty (30) days of termination or expiration of this Agreement, at Company's option, Advertiser shall return or confirm destruction of Company's Confidential Information. Advertiser acknowledges that if it breaches this Section 10, Company will have no adequate remedy at law available to it, will suffer irreparable harm, and will be entitled to immediate equitable relief. The restrictions placed on the disclosure of Confidential Information by this Section 10 do not apply to information that has become publicly known through no breach by Advertiser, or has been: (i) independently developed by Advertiser without access to Company's Confidential Information; (ii) approved in writing for release by Company; or (iii.) required to be disclosed pursuant to a valid law or court order, subpoena, or the rules of any applicable securities exchange; provided, however, that Advertiser promptly notifies Company of such requirement and reasonably cooperates with Company to seek confidential treatment or to obtain an appropriate protective order to preserve the confidentiality of the Confidential Information.
11. REPRESENTATIONS. Advertiser represents, warrants and covenants that: Any information or data Advertiser has provided or will provide under this Agreement is and will be accurate and complete. Advertiser is fully authorized to provide the Ad Content and publish the Ad(s). Advertiser will not generate, nor cause others to generate: automated, fraudulent or otherwise invalid impressions, CTs or other actions or otherwise engage in improper activities (as determined solely by Company) on the Company Network. Advertiser shall not advertise anything illegal, nor engage in any illegal or fraudulent business practice. Advertiser shall post on its Web site(s), and adhere to, a privacy policy which complies with all applicable laws, ordinances and regulations. Advertiser holds and hereby grants Company and Distribution Partners all rights necessary for Company and Distribution Partners to provide the Advertising Service in connection with this Agreement. Any use of the Ads will not violate or encourage violation of any applicable law, regulation, code of conduct or third party rights (including without limitation any intellectual property, publicity, or other right). Advertiser shall comply with the Policies. All Ad Content is free of viruses, trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or any other computer programming routine which is intended to, or has the capacity to damage, interfere with, intercept or expropriate any system data or personal information. The Ad Content does not contain, promote or offer any form of spyware, adware or other advertising or information collection software or other software ("Prohibited Software") or cause Prohibited Software to be installed onto a user's computer without the user's express consent. The Ad Content does not contain, link to, nor promote violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age. Customer is solely responsible for all Ad Content, websites, services and landing pages which an Ad links or directs a user to, and for the advertised services and products. Advertiser shall not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Advertising Service, any aspect or portion thereof, or Confidential Information, including source code or algorithms. In the event Advertiser submits Ads from third parties to the Service, Advertiser shall have obtained terms with such third parties which include Company and its affiliates as third party beneficiaries to such terms, same which shall provide Advertiser the same or greater protection than the protections provided Company hereunder (e.g., a full warranty disclaimer and limitation of liability clause, indemnification provisions, and representations and warranties surrounding the Ad Content). If Advertiser is entering into this Agreement on behalf of another (a "Principal"), Advertiser agrees to the foregoing representations for itself and for its Principal and also represents that it is Principal's authorized agent and has express authority to bind Principal to this Agreement.
12. DISCLAIMER; LIMITATION OF LIABILITY. Company has not made any promise, affirmation of fact, or provided any description or sample pertaining to the quality, specifications, or performance of the Advertising Service. Therefore, to the fullest extent permitted by law, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION: AGAINST INFRINGEMENT; SATISFACTORY QUALITY; MERCHANTABILITY; AND FITNESS FOR A PARTICULAR PURPOSE. Company also disclaims any warranty arising by usage of trade, course of dealing, or course of performance. Furthermore, Company disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) costs per advertising activity; (ii) advertising activity rates; (iii) availability and delivery of any impressions or Ad on any website; (iv) conversions or other results for any Ads; (v) the accuracy of Distribution Partner data; and (vi) the placement of Ads within the Company Network. Any reference in this Agreement to return on investment, advertising spend, campaign expectations and the like are for reference purposes only. Company is not responsible for the consequences of any redirection or other uses of traffic, as further set forth in Section 9. Furthermore, Advertiser understands that third parties may generate impressions or clicks on Ads for prohibited or improper purposes, and Advertiser accepts the risk of any such impressions and clicks. Advertiser's exclusive recourse for suspected invalid impressions or clicks is for Advertiser to make a claim pursuant to Section 5 e. In the event Company fails to publish Ad or in the event of any other failure, technical or otherwise, of Ad to appear as provided in this Agreement, the sole liability of Company shall be limited to that set forth in Section 5 e. Notwithstanding anything to the contrary contained herein, COMPANY IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION: LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO ADVERTISER'S BUSINESS) WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. WITHOUT LIMITING THE APPLICABILITY OF ANY LIMITED REMEDIES PROVIDED HEREIN, COMPANY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE LESSER OF: THE AMOUNT PAID BY ADVERTISER TO COMPANY FOR THE AD WHICH IS THE BASIS OF LIABILITY; OR THE AMOUNT PAID BY ADVERTISER TO COMPANY IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE BASIS OF THE LIABILITY.
13. INDEMNIFICATION. Advertiser shall indemnify, defend and hold harmless Company, (including its officers, directors, agents, employees, affiliates) and its Distribution Partners from and against any and all loss, liability, and expense (including without limitation, reasonable attorneys' fees) suffered or incurred by reason of any claims, proceedings or suits based on or arising out of the Ad Content, Advertiser's website, a breach of this Agreement, any act or omission of Advertiser or Company acting as Advertiser's agent, any act or omission of a third party for which Advertiser acted as principal (each, a "Claim"). If Company chooses to allow Advertiser to directly defend a Claim, the law firm Advertiser retains to defend Company will be subject to Company's prior written consent, and Company shall have the right to participate in any defense under this Section 13 with counsel it selects. Advertiser will not agree to any settlement that imposes any obligation or liability upon Company without Company's prior written consent. Without limiting any rights and remedies hereunder or under applicable law, Company shall have the right to set off any liability of Advertiser pursuant to this Section 13 against any Advertiser amounts held on deposit with Company.
14. TERM AND TERMINATION. Each party may terminate this Agreement upon prior written notice to the other party. Cancellation of the Advertising Service may be subject to Company's ability to cancel Ads already in production, in which case this Agreement shall continue in effect until delivery of the Advertising Service has ceased. Unless otherwise set forth in the IO, Advertiser shall provide the aforementioned notice no less than thirty (30) days prior to the requested termination date.
15. MISCELLANEOUS. Unenforceable provisions will be modified to reflect the parties' intent and only to the extent necessary to make them enforceable, and remaining provisions will continue in full effect. This Agreement is governed by Washington state law without regard to its conflict of laws rules. Advertiser and agent (if applicable) irrevocably submit to venue and personal jurisdiction in the federal and state courts in King County, Washington for any dispute arising out of or related to this Agreement, and waive all objections to jurisdiction or venue of such courts and agree not to commence nor prosecute any such dispute other than in such courts. The prevailing party is entitled to recover its costs, including reasonable attorneys' fees, in any action or suit to enforce any right or remedy under this Agreement, or to interpret any provision of this Agreement. Advertiser shall not assign or otherwise dispose of this Agreement without Company's prior written consent. This Agreement binds and inures to the benefit of the parties' successors and lawful assigns. Any notice required or permitted by this Agreement must be made in writing and will be deemed given as of the day the notice is received either by messenger, delivery service or certified mail, postage prepaid or sent (if via email) and such notice must be addressed (i) if to Company, to Company c/o Marchex, Inc., Attn: General Counsel, 413 Pine Street, Suite 500, Seattle, WA 98101; (ii) if to Advertiser, to Advertiser at the email address stipulated on the corresponding IO. No waiver of a breach of any provision hereof shall be deemed a waiver of any succeeding breach of such provision. In the event an IO provision conflicts with any provision of these Terms, the IO provision shall prevail only to the extent of the conflict. Notwithstanding the foregoing, an IO's mention of a campaign start and end date shall not affect the applicability of these Terms, but are for reference purposes only. Advertiser may not make any public announcement relating to the relationship established by this Agreement without the prior written consent of Company. Company and/or its parent company may make public announcements regarding the relationship established by this Agreement, which may include limited use of Advertiser marks or logos. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation, acts of God, government, terrorism, natural disasters, labor conditions, power failures, failure of internet carrier lines. Each Distribution Partner is a third party beneficiary to this Agreement. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the Advertising Service specified in the corresponding IO, superseding and replacing any other agreements, or terms and conditions applicable to such Advertising Service. However, Advertiser may enter into other agreements with Company relating to other advertising campaigns, which campaigns shall be governed by such other agreements. Advertiser has not relied upon any statements or promises in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g., an IO's reference to other terms and conditions) are void. Company may modify these Terms by posting the revised Terms to its website. Advertiser's continued participation in the Advertising Service following such changes signifies Advertiser's acceptance of such modifications. Sections 4, 5, and 9-15 shall survive termination, along with any provision that might reasonably be deemed to survive such termination.
Effective August 14, 2007