Legal

These Call Advertising Terms and Conditions (“Terms”), together with the terms of any written insertion order referencing these Terms (“IO”), constitute a legally binding and enforceable advertising services agreement (the “Agreement”) by and between the person agreeing to these Terms on any IO via having an authorized representative execute such IO (“Advertiser”) and the applicable subsidiary of Marchex, Inc. designated on the IO (“Company”). All capitalized terms used herein shall have the respective meanings ascribed to them in these Terms or the IO, as applicable. Advertiser and Company hereby acknowledge and agree as follows:



1. CALL ADVERTISING SERVICES.

a. Description. Company will perform digital call advertising services specified on the applicable IO (collectively, the “Advertising Services”) which include the placement of advertising content or materials provided by or approved for use by Advertiser pursuant to this Agreement (collectively the “Ad Content”), together with the applicable Company Numbers on Company-designated online or offline media, which may be developed or customized for Advertiser (such as business profile pages), Company-owned or operated media (such as business information and local search web sites, among others) or websites or other media including voice- or mobile-based media products owned or operated by Company’s distribution partners and affiliates through which Company makes the Advertising Services available (each third party distribution partner or affiliate being referred to herein as “Distribution Partner”) (collectively, “Company Network”). The Advertising Services also include the reporting and delivery of associated performance and user data in various media (collectively, the “Data”).

b. Rights and Permissions. Advertiser agrees to deliver or allow Company to access (including from Advertiser’s Web site or other publicly available sources), as the case may be, all Ad Content required or requested by Company in the format specified by Company at least seven (7) business days prior to the relevant Start Date. Advertiser hereby grants Company the non-exclusive right to use, reproduce, modify, create derivatives of, publicly display, perform, and distribute the Ad Content (and derivatives thereof) and to use all Advertiser trademarks, service marks, trade names, logos, ad copy and other identifiers (“Marks”) in connection with the Ads in any form of online or offline media determined by Company (whether now existing or hereafter created). In addition, subject to Advertiser’s prior approval in each instance, Company may obtain custom URLs for an Advertiser-or Client- branded Internet presence within the Company Network. The Ad Content or other advertising material published pursuant to this Agreement (collectively, “Ad(s)”) may be placed or delivered on any Web site or other media throughout the Company Network, and Advertiser authorizes and consents to all such placements. To the extent Ads are placed on Distribution Partner media or search engines, Company shall have the authority to enter into such Distribution Partner agreements as may be necessary to provide the Advertising Services. Upon Company’s request, Advertiser will make available to any interested party a written confirmation of such agency relationship. Company cannot guarantee inclusion within the published results of any particular Distribution Partner.

2. RESTRICTIONS AND RESPONSIBILITES

a.  General.  The Ad Content must comply in all respects with Company’s content submission guidelines, policies and instructions as the same may be provided by Company to Advertiser in writing (email sufficing) from time to time during the Term. Advertiser shall be responsible for obtaining and maintaining any computer and phone equipment (and the like) and ancillary products (collectively, the “Equipment”) needed to access and use the Advertising Services. Advertiser shall also be responsible for maintaining appropriate security safeguards with respect to property for which it maintains ownership, control, use under license and/or access, including its Equipment, its Advertiser account, passwords and files, any Data acquired hereunder and any Confidential Information. Advertiser shall be solely responsible for its use of the Advertiser Data. Advertiser will not (and will not cause any third party to), directly or indirectly: reverse engineer, decompile or disassemble the Advertising Services or any software, documentation or data provided by Company in connection with the Advertising Services (collectively, “Company Materials”); modify or create derivative works based on the Advertising Services or any Company Materials; or copy (except for archival purposes), lease, distribute or otherwise transfer rights to the Advertising Services or any Company Materials; or remove any proprietary notices or labels. Advertiser may access Company websites solely to manage 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 agents, scripts, robots, or spiders.  Advertiser agrees not to interfere with the proper working of any Company website. The parties acknowledge and agree that Advertiser will be deemed responsible for each of its agents, representatives, subcontractors, licensees, and any other Advertiser affiliates that have access to or otherwise use the Advertising Services or any Company Materials (collectively, “Advertiser Affiliates”), and their respective compliance with the terms of this Agreement.

b. Company Numbers. Advertiser shall not have the right to re-assign the call-through telephone numbers provided by Company for the purposes of the Advertising Services (the “Company Numbers”) or to use them other than as explicitly set out herein without the prior written consent of Company. All Company Numbers remain the property of Company, pursuant to agreements with its various telephone carriers and vendors, and are made available to Customer solely for use in accordance with the terms and conditions of this Agreement. The parties acknowledge and agree that Advertiser’s use of any Company Numbers may be further limited by, among other factors, changes to telephone carrier terms, changes in carrier relationships, guidelines recommended by Federal, state or local regulators, or changes to applicable law and regulation from time to time.

c.  Recorded Call Services. Recording of calls under the Advertising Services (“Recorded Call Services”) is part of an optional product feature. Advertiser may elect not to use such product feature in connection with the Advertising Services. The terms of this subsection shall apply solely in the event that Advertiser elects to use such product feature. Advertiser understands that, when a person (the “Caller”) calls a Company Number, such call may be recorded and, therefore, Advertiser or its contractors or agents, at the direction of Advertiser, shall advise all Callers to Company Numbers prior to any connection to Advertiser or, if applicable, its Clients or others that each call is subject to recording and monitoring (the “Recorded Call Notice”). In connection therewith, Advertiser shall use all available product functionality or other available means to ensure that the Caller receives the appropriate Recorded Call Notice prior to connection with the Advertiser designated telephone number(s); will be automatically advised that each call is subject to recording and monitoring prior to the connection of the telephone call to the Advertiser through the Company Number (the “Recorded Call Message”). If Advertiser has elected to use the Recorded Call Services, Advertiser represents, warrants and agrees that in connection with its use thereof, that Advertiser has reviewed the legality of recording, monitoring, storing, and divulging telephone calls, that Advertiser is permitted to engage in those activities, and that Advertiser shall use the Recorded Call Service in full compliance with all applicable laws and regulations. Advertiser represents and warrants that it has reviewed the proposed usage of the Company system with its legal counsel, and that Advertiser has established proper procedures to protect the privacy of, and otherwise comply with all applicable laws with respect to, Callers and the Call Receivers. In the event the Recorded Call Message requires a revision in order to comply with applicable law, then Advertiser shall promptly notify Company in writing of that fact, proposing the exact language that Advertiser requires to comply with the applicable laws. Advertiser must notify Company in the event the Advertiser learns of a required revision to the Recorded Call Message. Advertiser agrees and acknowledges that Company accepts no responsibility for (1) the legality of recording, monitoring, storing and/or divulging telephone calls and (2) the legality of the language used in the Recorded Call Message. Advertiser agrees and acknowledges that applicable laws and regulations may require that Advertiser 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 receive telephone calls recorded by the Recorded Call Service (the “Call Receivers”). Advertiser agrees, acknowledges, represents and warrants that it will provide and/or obtain all notices, consents, and permission relating to Call Receivers, as required by applicable laws and regulations.

d.  Calculations. 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 Services, including all qualifying telephone calls (the “Calls”). 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. 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 media. 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. 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.

3. PAYMENT

a. Credit Reporting. Advertiser authorizes Company to use credit reporting agencies to evaluate Advertiser’s credit history. Upon request, Advertiser shall provide Company with any necessary information or consent. In the event of any negative change to Advertiser’s credit profile, Company may adjust payment terms or require payment in advance, as applicable.

b.  Obligation to Pay. Advertiser agrees to promptly pay (and in no event later than thirty (30) days from end of the applicable calendar month in which such amounts were incurred) all advertising fees charged to it by Company in accordance with the IO. Unless otherwise indicated, all dollar amounts referred to in this Agreement or the IO are in the lawful money of the United States of America. Advertiser shall be responsible for all taxes associated with the Advertising Services other than taxes based on Company’s net income.

c.  Failure to Promptly Pay Amounts Owed. If Advertiser fails to pay any charge when due, irrespective of the payment method utilized, Company 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.

d.  Payment Disputes. To the fullest extent permitted by law, Advertiser waives all claims relating to any payment dispute of 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.

4.    RESERVATION OF RIGHTS; MODIFICATIONS; GOVERNMENT MATTERS.

a.  Reservation of Rights. This Agreement is not intended to, and shall not affect, ownership by either party of, or rights of either party in, any of its intellectual property rights, content, products and services, and nothing set forth in this Agreement shall be construed as the assignment or transfer of any ownership rights in any of the foregoing from one party to the other. Other than the express licenses set forth herein, nothing in this Agreement, and nothing in any statement made in connection with this Agreement, will be deemed a license (by implication, estoppel or otherwise) under either party’s patent rights or other intellectual property rights. Any Data collected or created hereunder during the Term and through Advertiser’s account, that is specific to Advertiser or its Client(s) is the intellectual property of Advertiser (collectively, the “Advertiser Data”), subject to Company’s non-exclusive right to use such Data in connection with the delivery of the Advertising Services and operation of its business, which may include reporting Advertiser Data on an aggregated basis in accordance with Section 5 hereof. Neither party’s performance according to the terms and conditions of this Agreement will in any way broaden the intellectual property rights of the other party. Both parties reserve all rights not expressly granted.

b.  Modifications. From time to time, Company may make immaterial modifications to the Advertising Services (including the look and feel, and the functionality of any API). Advertiser’s sole remedy with respect to such modification is to terminate this Agreement or suspend or cancel its account(s). Advertiser’s continued use of the Advertising Services following a modification shall constitute its consent thereto.

c.  Government Matters. Advertiser may not remove or export from Advertiser’s jurisdiction or allow the export or re-export of the Advertising Services or anything related thereto in violation of any applicable export control or similar restrictions, laws or regulations. Company is not a telephone company. Company purchases telecommunications services and uses such services to provide enhanced service products to Advertiser. If at any time Company’s right to allocate Company Numbers or otherwise provide the Advertising Services to Advertiser is impaired or regulated by any governmental or quasi-governmental entity, including, the U.S. Federal Trade Commission, the U.S. Federal Communications Commission or any state public utility commission, Company shall have the right to terminate, suspend or amend this Agreement automatically upon written notice Company shall have no liability or obligation to Advertiser of any kind arising out of such a termination, suspension or change in Advertising Services, as the case may be.

5.    CONFIDENTIALITY. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). “Confidential Information” includes any non-public information of a Disclosing Party such as business plans, products, technical data, specifications, documentation, rules and procedures, contracts, presentations, know-how, product plans, business methods, product functionality, services, data, customers, markets, competitive analysis, databases, formats, methodologies, applications, developments, inventions, processes, payment, delivery and inspection procedures, designs, drawings, algorithms, formulas, or information related to engineering, marketing, or finance. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without fault of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is otherwise required to be disclosed by court order, law, regulation or securities exchange requirement, or (f) receipt of a criminal or civil subpoena, or written request from governmental authorities requesting information in connection with a criminal proceeding. Notwithstanding the foregoing, Company shall have the non-exclusive right to use such Confidential Information in connection with the delivery of the Advertising Services. In addition, Company shall have a non-exclusive, nontransferable, perpetual worldwide right and license, solely for the Operational Purposes (as defined below) to create and use any aggregate statistical and database compilations or analysesincluding Advertiser Data that contain no reference to Advertiser or any Personal Information, such that the Data cannot be reverse engineered to identify Advertiser or any specific attributes relating to Advertiser. For the purposes of this Agreement, “Operational Purposes” means use of the aggregate statistical and database compilations or analyses: (a) in the conduct of Company’s business and operations, advancing and improving existing products and services, creating new and enhanced product and services, and development of market and industry intelligence and expertise; (b) creation of operational statistics for internal use only; (c) creation and inclusion in financial reporting of aggregate statistics regarding services performed; and (d) creation and inclusion in marketing materials of aggregate statistics highlighting the capabilities of the Advertising Services. For the purposes of this Agreement “Personal Information” shall mean personally identifiable or other personal records or information. Without limiting any other provision of this Agreement, each party shall retain all right, title and interest in and to its Confidential Information, including all intellectual property rights inherent therein or appurtenant thereto. For the avoidance of doubt, the parties acknowledge and agree that Confidential Information includes Personal Information, including call-related, caller related and call-receiver related Personal Information, that may be included in the Data processed under this Agreement that each of the parties shall treat such Confidential Information in accordance with the terms of this Section, in addition to, without limiting, the requirements that each of the parties has with respect to the Data generally under this Agreement and applicable law.

6.    REPRESENTATIONS. 



a.  Authority and Obligations. Advertiser represents and warrants during the Term that: (i) any and all information Advertiser provides under this Agreement is true, accurate and complete; (ii) any business telephone numbers provided by Advertiser are true and correct numbers for Advertiser or its Client, as applicable and will not connect to an entity other than the Advertiser or its Client, as applicable; (iii) it is not engaged in any fraudulent, misleading or deceptive practices; (iv) it has full power and authority to enter into this Agreement; (v) it has and will have, during the Term, all consents, approvals, licenses and permissions, necessary for Advertiser to perform all of its obligations hereunder and for Company to exercise all of its rights hereunder; (vi) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms; (vii) it shall use the Advertising Services (and any Data acquired in connection therewith) in full compliance with all applicable laws and regulations and rules of any governmental or regulatory body, and including those relating to advertising, privacy, marketing and telephone solicitation (for the avoidance of doubt, this shall include federal “Do-Not-Call” rules); (viii) it shall (and, if applicable, shall cause its Clients to represent and warrant that they shall) obtain and maintain throughout the term of this Agreement, the full right and authority (including by way of any consents required under applicable law) for any collection, use, transfer, disclosure or other processing by Company of any Personal Information for the purposes contemplated under this Agreement; (ix) it has established proper procedures to protect the privacy of its customers’ Personal Information, and otherwise comply with all applicable laws with respect to the Data acquired by Advertiser and, if applicable, its Clients hereunder; (x) it has the right to use and grant the licenses and permissions to Company under this Agreement with respect to the use of the designated Ad Content and Marks; and (xi) none of the Ad Content or Marks will (a) infringe or violate any right of any third party, including intellectual property rights, rights of privacy, publicity or freedom from defamation (b) violate any governmental law, rule or regulation, including laws relating to obscenity and/or pornography, (c) contain any virus, worm, Trojan horse or other contaminating or destructive feature, (d) 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; or (e) contain any offensive material. Notwithstanding Section 8 of this Agreement, Company shall have no indemnity obligations to Advertiser (or, if applicable, its Clients) for any Claim caused as a result of a breach by Advertiser or, if applicable, its Clients of the foregoing representations and warranties.

b. Use of Information. To the extent required by applicable law and regulation for certain regulated financial and other entities in their use of consumer data, Advertiser represents and warrants that all consumer information received from Company will be used for marketing purposes only. By way of example and not limitation, consumer information will not be used, in whole or in part, for purposes of establishing a consumer’s eligibility for credit or insurance or for employment purposes.

c. Advertising Services for Merchants. If Advertiser is an agency that intends to offer use of the Advertising Services to its merchant clients or other customers (collectively, “Clients”) then (i) Advertiser agrees to the representations contained in the foregoing subsection for itself and for its Clients and also represents that it is Client’s authorized agent and has express authority to bind Client to this Agreement and (ii) Advertiser shall have obtained written contractual terms with each of its Clients (“Client Terms”) which include Company and its suppliers and 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, representations and warranties surrounding the Ad Content and compliance with all applicable laws and regulations in its jurisdiction with respect to the Advertising Services including, if applicable, Recorded Call Services). Furthermore, Advertiser shall be responsible for all marketing materials, advertising and informational content, and any oral or written representation that Advertiser or Advertiser Affiliates may make to any current or potential Clients; and Advertiser shall neither make nor include in the Client Terms any representations or warranties on behalf of Company or with respect to Company, its Distribution Partners or the Advertising Services.

7.    DISCLAIMERS. 



a.  Recorded Call Services. Company makes no representation with respect to Advertiser’s use of the Recorded Call Message functionality or any call recording.

b.  Advertising Services in General. 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 Services. Therefore, to the fullest extent permitted by law, COMPANY AND ITS THIRD PARTY VENDORS AND TECHNOLOGY PARTNERS INCLUDING SKYPE DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING: AGAINST INFRINGEMENT; SATISFACTORY QUALITY; MERCHANTABILITY; AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAY IN ITS SOLE DISCRETION REMOVE ANY DATA FROM ITS SERVERS AT ANY TIME FOR ANY REASON. 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 or volume of Calls; (iii) availability and delivery of Ads; (iv) conversions or other results for any Ads; (v) the availability, accuracy, security, usefulness, interoperability or content of any data provided or acquired hereunder, including third party data, Distribution Partner data and consumer data; and (vi) the placement of Ads within the Company Network. Advertiser’s exclusive recourse for any suspected invalid Calls or in the event of any failure, technical or otherwise, of any Ad to appear as provided in this Agreement is for Advertiser to make a claim pursuant to Section 3(d).

8.  LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER COMPANY, ITS THIRD PARTY SUPPLIERS AND TECHNOLOGY PARTNERS INCLUDING SKYPE ON THE ONE HAND, NOR ADVERTISER, ON THE OTHER HAND, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY: (A) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) FOR ANY MATTER BEYOND SUCH PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY ADVERTISER TO COMPANY FOR THE ADVERTISING SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, ANY FAILURE OF ADVERTISER OR, IF APPLICABLE, ITS CLIENTS TO COMPLY WITH APPLICABLE LAW OR REGULATION SHALL NOT BE COVERED BY THE FOREGOING LIMITATION OF LIABILITY.

9.    INDEMNIFICATION. 



a.  Each party (the “Indemnifying Party”), at its own expense, will indemnify, defend and hold harmless the other party (the “Indemnified Party”) and the Indemnified Party’s affiliates, employees, representatives and agents from and against any claim, demand, action, investigation or other proceeding, including all damages, losses, liabilities, judgments, costs and expenses arising therefrom, brought by any third party against the Indemnified Party (collectively, an “Claim”) to the extent that the Claim is based on, or arises out of an allegation that the Indemnifying Party’s performance hereunder violates any applicable law, rule or regulation (except that Advertiser shall be solely responsible for its use of any Advertising Services, including Recorded Call Services, and for its use or disclosure of any information obtained through any Advertising Services) or infringes the rights of any third party, including intellectual property rights.

b.  Advertiser at its own expense, will indemnify, defend and hold harmless Company, its third party technology partners including Skype as well as their respective affiliates, employees, representatives and agents from and against any Claim for, including without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with: (i) the Ad Content, Marks or Advertiser content; (ii) Advertiser’s breach of any term, condition, agreement, representation or warranty hereunder; (iii) Advertiser’s failure to comply with any state or federal telemarketing law or regulation); or (iv) Advertiser’s use of the Advertising Services including its use or disclosure of any information obtained through the Advertising Services. Although Company has no obligation to monitor the content provided by Advertiser Affiliate’s use of the Advertising Services, Company may do so and may remove any such content or prohibit any use of the Advertising Services it believes may be (or is alleged to be) in violation of this Agreement.

10.  TERM AND TERMINATION. Subject to earlier termination as provided below, the effective term of this Agreement (the “Term”) shall be for one (1) year from the date the applicable IO is executed and shall be automatically renewed for additional periods of the same duration, unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then current term. Notwithstanding the foregoing, each party may terminate this Agreement upon prior written notice to the other party. Cancellation of the Advertising Services 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 Services 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. Upon any termination, unless otherwise limited or restricted by applicable law or regulation, Company may maintain archived Advertiser Data for at least thirty (30) days following termination of the Agreement, and, upon written request by Advertiser, will deliver such archived Advertiser Data to Advertiser in a mutually agreed upon format (at Advertiser’s expense).

11.  MISCELLANEOUS. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The word “include” or any variants thereof used herein shall be construed non-exclusively to mean “including without limitation.” 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, 520 Pike Street, Suite 2000, 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 acts of God, government, terrorism, natural disasters, labor conditions, power failures, failure of internet carrier lines. Advertiser acknowledges and agrees that Distribution Partners as well as Company suppliers and other third party technology partners including Skype are a third party beneficiaries to this Agreement. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the Advertising Services specified in the corresponding IO, superseding and replacing any other agreements, or terms and conditions applicable to such Advertising Services. 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 Services following such changes signifies Advertiser’s acceptance of such modifications. Sections 2(d), 3, and 5-11 shall survive termination, along with any provision that might reasonably be deemed to survive such termination.

Effective August 04, 2011

These advertising guidelines ("Specifications")  apply to each Advertiser (as defined below), and serve to increase click-through frequency and quality. These Specifications apply to all Advertiser content including without limitation domain names, ads, keywords, and all Web site (as defined below) content (collectively, "Content").  Company reserves the right to reject submissions relating to any Content,  products and/or services deemed unacceptable in Company’s sole discretion.  An Advertiser is any person or entity which utilizes search advertising with one or more of the following Marchex, Inc. companies: Marchex,  LLC (f/k/a Marchex Adhere SSC, LLC f/k/a IndustryBrains, LLC), a Delaware limited liability company and successor in interest to Marchex Adhere PPC, Inc. (f/k/a Enhance Interactive, Inc. f/k/a ah-ha.com,  Inc.); or Marchex Sales, Inc. (f/k/a MDNH, Inc.) a Delaware corporation (as applicable, the "Company"). The corresponding Company shall be solely responsible for determining Advertiser’s compliance with these Specifications.

ADVERTISER WEB SITE

The Advertiser Web site ("Web site")  must promote a clearly defined product or service. If such product or service is not provided by Advertiser, Advertiser must have appropriate permission for such advertising. Web sites limited to a simple list of items or links are not acceptable, and the Web site may not restrict the user’s "back" button. Search engine, shopping, auction,  and similar Web sites with dynamic content may not bid on keywords relating to specific products. Acceptable keywords are those related to the type of service provided by the Web site. (E.g., "mountain bikes",  "mountain bike stores", "mountain bike trails").

TRADEMARK POLICY

An Advertiser’s use and submission of any content that a third party asserts trademark rights to, without the authorization of the trademark owner, is a violation of these Specifications.  Any Advertiser using such unauthorized Content assumes all liability with respect thereto and agrees to indemnify Company for any claims arising from such liability pursuant to the applicable terms and conditions of the advertising program.

Trademark owners (or their representatives)  who have a good faith belief that an Advertiser is improperly using a trademark in Content are encouraged to contact such Advertiser directly,  but may also directly contact Company with the following information:

 
1. Your name, company name, if   applicable, and relevant contact information;
 
2. Trademark(s) in question;
 
3. Current registration information   for the trademark(s);
 
4. Name of Advertiser improperly   using trademarked term(s);
 
5. The keyword(s) causing the   relevant Content to appear and any evidence of consumer confusion resulting   from the display of such Content;
 
6. Copies of direct communications   with the Advertiser regarding trademark concerns, if any; and
 
7. A statement certifying that   the information in your claim is true and correct and that you are authorized   to act on behalf of the trademark owner.

Upon receipt of the above information,  Company will endeavor to review the relevant Advertiser’s compliance with these Specifications and, if applicable, take appropriate action.

KEYWORD GUIDELINES

Keywords may only contain alphanumeric characters and may not exceed 100 characters in length. Certain non-standard characters are invalid and cannot be included within keywords such as ! @ % ^ * ( ) = { } - ~ | ; , ’ and ?. Keywords are not case-sensitive and are matched without regard to upper-case or lower-case letters (e.g.  ‘ppc campaign’ encompasses both ‘ppc campaign’ and ‘PPC Campaign’.)  In addition certain common punctuation variations such as commas and periods will be ignored by our system (e.g ‘second ave.’ is equivalent to ‘second ave’.)

EDITORIAL AND CONTENT GUIDELINES

Character Limits

Ad headline: 25 (including spaces) 
  Ad description: minimum 20 and maximum 70 (including spaces)
  Display URL: 35
  Destination URL: 500

Recommended Account Limits

Keywords per Account: 150,000
  Campaigns per Account: 50
  Ad Groups per Account: 1,000
  Keywords per Ad Group: 1,000
  Ads per Ad Group: 1 (only)

Prohibited Uses
Neither the Content nor Advertiser’s use of the advertising services may: (a) violate any applicable law, statute, or ordinance; (b) promote,  display or link to inappropriate, illegal, or harmful content; or (c)  engage in "Net Abuse" (as defined below). Company reserves the right to restrict or prohibit any and all uses or content that it determines in its sole discretion to violate this Section. All examples below are non-exhaustive.

Prohibited Terms

The superlatives and phrases set forth below are prohibited:

Style Specifications

Advertiser shall use standard grammatical rules unless otherwise noted herein. Ad copy must be logical and contain correct spelling, punctuation and grammar (commonly misspelled words or spelling variations may be accepted). Numbers and letters must adhere to their true meaning. The following uses are prohibited:

     
1. repetitious symbols, words   or phrases (e.g., "Sale Sale Sale.");
     
2. gimmicky, vulgar or obscene   language;
     
3. use of more than one exclamation   mark;
     
4. use of ellipses ("...");
     
5. inclusion of contact information   in the headline or description;
     
6. excessive use of punctuation   marks and/or inappropriate spacing;
     
7. substitution of a word which   may be written for a symbol (e.g., "$" for "money");
     
8. use of ampersand ("&")  in a headline except if part of a proper noun; and
     
9. capitalization of words not   normally capitalized (e.g. "Start Saving TODAY").
 

Additional rules are as follows:

     
• Hyphens: Include a space before   and after (e.g. "Socks - $5.00 and up").
     
• Abbreviations: Are generally   not permitted. However Advertisers may make use of common abbreviations   within their ad copy that web users would easily recognize.
     
• Conciseness: Ad copy should   be brief and informative. Avoid repetition between the headline and   description. Avoid nonspecific call-to-action phrases such as "click   here".
     
• Headlines: Headlines should   be in title case (e.g., Excellence in Distance Education) and may not   contain exclamation marks.
     
• Descriptions: Descriptions   must be at least twenty characters in length.
     
• Symbolic Characters: Symbols   must adhere to their true meaning. No more than two ampersands ("&")  may be used in an ad (headline and description combined). No more than   a total of six symbolic characters and/or punctuation may be used in   a description and no more than three in a headline (DKI brackets do   not count towards this punctuation limit). No more than two symbolic   characters may be used in sequence. The characters "{ } < >  ~" are not permitted in either headlines or descriptions.
 

COMPLIANCE

Company shall be solely responsible for determining whether Advertiser is in compliance with these Specifications,  but shall have no obligation to take any specific action with regard to same, investigatory or otherwise. Additionally, Company reserves the right to report any suspected illegal activity to the appropriate authorities. Company may modify these Specifications at any time.

Effective June 1, 2010

These Recorded Call Services Terms and Conditions supplement the Call Analytics Terms and Conditions (located at: http://www.marchex.com/legal/terms-and-conditions-ca) or such successor URL(s) implemented by Marchex from time to time), and apply to any Customer using the Recorded Call Services.

Any capitalized terms used herein but not defined shall have the meaning ascribed to it in the Call Analytics Terms and Conditions.

In connection with its use of the Recorded Call Services, Customer acknowledges and agrees that:

1. Call recording, transcribing, monitoring, analyzing and archiving under the Services is part of an optional, add-on product feature made available by Marchex, which may include, without limitation, the reporting and archiving of personal and non-personal data related to such Calls (collectively, the “Recorded Call Services”). For the avoidance of doubt, and without modifying any terms hereof, Call Mining Services are included within, and are an integral part of, the Recorded Call Services and, if used by Customer or Customer Affiliates, are subject to these Recorded Call Services Terms and Conditions;
2. Customer shall determine in advance, in its sole discretion without reliance on Marchex, whether the use of the Recorded Call Services is appropriate and legal in the context of Customer’s use and implementation thereof. Customer may always elect not to use or to cease use of the Recorded Call Services. In the event that Customer elects at any time to use any or all of such Recorded Call Services or otherwise activates any of such Recorded Call Services at any time, whether directly or indirectly, these additional Recorded Call Services Terms and Conditions shall apply in full to Customer and any of its Customer Affiliates, as applicable; Customer shall be solely responsible for Customer Affiliates under these Terms and Conditions;
3. In connection with the Recorded Call Services, Customer acknowledges and agrees that: (a) calls placed using the Marchex Numbers and related Services (collectively, “Calls”) may be recorded, transcribed, monitored, analyzed and archived: (b) Customer has the sole responsibility to advise all callers to Marchex Numbers prior to any commencement of a Call with Customer, its Customer Affiliates or others that each Call is subject to recording, transcription, monitoring, archiving and any other relevant details and required notices (the “Recorded Call Notice”); (c) Customer has the sole responsibility to implement or effect such Recorded Call Notice, whether using available product functionality or other means to ensure that the each Call receives a Recorded Call Notice in an appropriate and legally compliant manner; and (d) Customer has the sole responsibility for any Recorded Call Notice used in connection with any Calls and its compliance with applicable federal and state law and regulation; (e) any sample or default pre-recorded notices or messages made available by Marchex within the Recorded Call Services, whether at request of Client or not, are for illustration purposes only; and (f) Marchex makes no representations or warranties with respect to any use of any Recorded Call Notice by Customer or its Customer Affiliates or any other party (and no separate communication shall be deemed to supersede this acknowledgement and agreement);
4. Call content, information and data obtained under the Recorded Call Services shall be deemed “Customer Data” under the Agreement;
5. Customer represents and warrants that Customer and its Customer Affiliates shall use the Recorded Call Services (and any Customer Data acquired in connection therewith) in full compliance with all applicable laws and regulations. Customer further represents and warrants that Customer and its Customer Affiliates shall have established proper procedures to protect the privacy of all callers and call recipients in connection with the Recorded Call Services, and otherwise fully comply with all applicable laws, regulations and governmental or self-regulatory guidelines;
6. Customer further represents and warrants that Customer and its Customer Affiliates will (a) make all necessary disclosures during Calls made to Marchex Numbers and while using any Recorded Call Services; (b) obtain all necessary consents or approvals with respect thereto; and (c) maintain, use and disclose all Customer Data acquired in connection therewith only in a manner that fully complies with all applicable laws and regulations;
7. Customer is solely responsible for, and Marchex shall have no liability with respect to, without limitation: (a) the legality of recording, transcribing, monitoring, analyzing, archiving and/or disclosing the contents of telephone calls or caller/ call recipient identification; (b) the legality of the language used in any Recorded Call Notice; and (c) the legality of any use, handling, retention and disclosure of Customer Data acquired by Customer or its Customer Affiliates as a result of the use of any Recorded Call Services;
8. Customer further represents, and warrants that its use of the Recorded Call Services is for “quality assurance” and “customer service” purposes only;
9. If Customer is a publisher or agency that intends to offer use of the Recorded Call Services to its Clients, in addition to the requirements of the Call Analytics Services Terms and Conditions, Customer shall include in the Client Terms, in the same form or substance, those additional representations and warranties and other obligations included in Sections 3 through 8 hereof with respect to the Recorded Call Services;
10. Marchex operates as the primary service provider to Customer under these Recorded Call Services; Marchex may also engage third-party vendors, subcontractors or agents in connection with the delivery of any of its Services;
11. For the avoidance of doubt, Customer’s use of the Recorded Call Services is equally bound to all of the provisions of the Call Analytics Terms and Conditions (http://www.marchex.com/legal/terms-and-conditions-ca or such successor URLs), of which these Recorded Call Services Terms and Condition form an integral part;
12. Marchex may modify the terms and conditions of this Agreement by posting the revised terms and conditions to its website. Customer’s continued participation in the Recorded Call Service following the effectiveness of such changes signifies Customer’s acceptance of such modification.

These Call Analytics Terms and Conditions (“Terms”), together with the terms set forth in any Order Form, constitute a legally binding and enforceable Service Agreement (“Agreement”) between the Customer whose signature appears on the Order Form and Marchex Sales, Inc., a Delaware corporation (“Marchex”). Marchex is a successor in interest to Marchex Voice Services, Inc. (f/k/a VoiceStar, Inc. f/k/a TL Solutions, Inc.). These Terms shall be deemed incorporated by reference into the Order Form; provided, that if any provision of the Order Form conflicts with any provision of these Terms, the provision of the Order Form shall prevail.

1. RESTRICTIONS AND RESPONSIBILITIES

1.1 Equipment; Services; and Software. Customer shall be responsible for obtaining and maintaining any computer and phone equipment (and the like) and ancillary products (collectively, the “Equipment”) needed to access and use the enhanced information and data services provided under this Agreement (collectively, the “Services”), which Services include, without limitation, the reporting and delivery of Customer’s associated performance and user data in various media (collectively, the “Data”). Customer shall also be responsible for maintaining appropriate security safeguards in respect of property for which it maintains ownership, control, use under license and/or access, including without limitation, its Equipment, its Customer account, passwords and files, any Data acquired hereunder, any Confidential Information, access and all uses of the Services and Data through its Customer account or its Equipment. Customer shall be solely responsible for its use of the Customer Data (as hereinafter defined). Customer and its Clients (as defined below) will not (and will not cause any third party to), directly or indirectly: reverse engineer, decompile or disassemble the Services or any software, documentation or data related to the Services (collectively, “Software”); modify or create derivative works based on the Services or any Software; or copy (except for archival purposes), lease, distribute or otherwise transfer rights to the Services or any Software; or remove any proprietary notices or labels. The parties acknowledge and agree that Customer will be deemed responsible for each of its Clients, subcontractors, licensees, representatives, customers, agents and other Customer affiliates (collectively, “Customer Affiliates”), and their respective compliance with the terms of this Agreement.

1.2 Telephone Numbers. During the Service Term, subject to the terms of the Order Form and this Agreement, Customer may use the telephone numbers that are assigned to it by Marchex (collectively, the “Marchex Numbers”) for its own performance-tracking or other analytics purposes, or it may re-assign such Marchex Numbers for the same limited use by any of its advertiser or merchant clients or other customers (collectively, “Clients”), for display or publication on their websites or publications (print, electronic, or otherwise) or such other media designated by Customer (collectively, “Customer Media”) or Clients (collectively, “Client Media”) from time to time in accordance with the terms set forth herein. Clients shall not have the right to re-assign the Marchex Numbers or to use them other than as explicitly set out herein without the prior written consent of Marchex. All Marchex Numbers remain the property of Marchex, pursuant to agreements with its various telephone carriers and vendors, and are made available to Customer solely for use in accordance with the terms and conditions of this Agreement. Upon expiration or termination of this Agreement, all rights of Customer to the use of the Marchex Numbers and Services shall cease absolutely and Customer (i) shall, and shall cause its Clients to, take all reasonable steps thereafter to remove, amend or cancel all publications, advertisements, promotions and other items bearing any Marchex Number; and (ii) shall not thereafter distribute or sell any Customer Media or other item whatsoever bearing any Marchex Number. The parties acknowledge and agree that Customer’s use of any Marchex Numbers may be further limited by, among other factors, changes to telephone carrier terms, changes in carrier relationships, guidelines recommended by Federal, provincial or local regulators, or changes to applicable law and regulation from time to time. Marchex shall have the right upon written notice to Customer to exclude from this Agreement any individual Client Media or Customer Media.

1.3 Optional Media Services. Development of specialized media for Customer or Clients is an optional Service which Customer may elect pursuant to an Order Form, online activation or other request accepted by Marchex. Customer may elect not to use such optional Services. To the extent that Customer elects to use such Services, the Marchex Media Services Terms and Conditions shall apply to Customer and any Customer Affiliates, and are fully incorporated herein by reference:http://www.marchex.com/legal/media-svcs-terms-and-conditions.

1.4 Optional Recorded Call Services. Recording of calls is an optional Service which Customer may elect pursuant to an Order Form, online activation or other request accepted by Marchex. Customer may elect not to use such optional Services. To the extent that Customer elects to use such product feature the Recorded Call Services Terms and Conditions shall apply to Customer and any Customer Affiliates, and are fully incorporated herein by reference: http://www.marchex.com/legal/recorded-call-terms.


1.5 Customer Agreements with Clients. If Customer is a publisher or agency that intends to offer use of the Marchex Numbers or Services to its Clients, then Customer shall be responsible for all use of the Marchex Numbers and Services by its Clients and shall have in place with each of its Clients, written contractual terms (“Client Terms”) that shall: (i) contain a disclaimer of warranties substantially similar to those set out in Sections 5.2 and 5.3 below, on behalf of Marchex and its suppliers ; (ii) contain a limitation of liability of Marchex and its suppliers substantially similar to those set out in Section 6 below; (iii) include representations and warranties from Client that Client is responsible for its use of the Services and in compliance with all applicable laws and regulations in its jurisdiction with respect to such Services (including, if applicable, Recorded Call Services (as defined herein)); (iv) include Marchex and its suppliers as indemnitees; (v) designate Marchex and its suppliers as third party beneficiaries of such provisions with a right to enforce such provisions against such Client; and (vi) only in the case that Marchex Media Services are provided, contain appropriate licenses for Client’s Business Content and Marks to be displayed and published by Marchex on Marchex Media (in accordance with such subsection), as may be elected by Customer from time to time (email sufficing). Furthermore, Customer shall be responsible for all marketing materials, advertising and informational content, and any oral or written representation that Customer or Customer Affiliates may make to any current or potential Clients; and Customer shall neither make nor include in the Client Terms any representations or warranties on behalf of Marchex or with respect to Marchex, its affiliates or the Services.

1.6 Customer Representations. Customer represents and warrants that: (i) it has full power and authority to enter into this Agreement; (ii) it has and will have, during the Service Term, all consents, approvals, licenses and permissions, necessary for such party to perform all of its obligations hereunder and for Marchex to exercise all of its rights hereunder; (iii) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms; (iv) it shall use the Services (and any Data acquired in connection therewith) in full compliance with all applicable laws and regulations and rules of any governmental or regulatory body, and including without limitation, those relating to advertising, privacy, marketing and telephone solicitation (for the avoidance of doubt, this shall include, without limitation, federal “Do-Not-Call” rules); (v) it shall (and shall cause its Clients to represent and warrant that they shall) obtain and maintain throughout the term of this Agreement, the full right and authority (including by way of any consents required under applicable law) for (a) the transfer of Personal Information to Marchex as contemplated hereunder and (b) any other collection, use, transfer, disclosure or other processing by Marchex of such information for the purposes contemplated under this Agreement; (vi) it has established proper procedures to protect the privacy of its Clients’ and their customers’ Personal Information, and otherwise comply with all applicable laws with respect to the Data acquired by Customer and Clients hereunder; (vi) in the event that Marchex Media Services are provided, Customer has the right to use and grant such licenses and permissions to Marchex under this Agreement with respect to the use of the designated Business Content and Marks; and (vii) in the event that Marchex Media Services are provided, none of the Business Content or Marks will (a) infringe or violate any right of any third party, including without limitation, copyrights, trademark rights, or other intellectual property rights; and rights of privacy, publicity or freedom from defamation; (b) violate any governmental law, rule or regulation, including without limitation, laws relating to obscenity and/or pornography, (c) contain any virus, worm, Trojan horse or other contaminating or destructive feature, or (d) contain any offensive material. Notwithstanding Section 1.7 of the Agreement, Marchex shall have no indemnity obligations to Customer (or its Clients, affiliates, employees, representatives or agents) for any Claim (as hereinafter defined) caused as a result of a breach by Customer or its Clients of the foregoing representations and warranties, and Customer shall indemnify Marchex for any Claim incurred by Marchex which arise in such circumstances.

1.7 Indemnification. Each party (the “Indemnifying Party”), at its own expense, will indemnify, defend and hold harmless the other party (the “Indemnified Party”) and the Indemnified Party’s affiliates, employees, representatives and agents from and against any claim, demand, action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses arising therefrom, brought by any third party against the Indemnified Party (collectively, an “Claim”) to the extent that the Claim is based on, or arises out of an allegation that the Indemnifying Party’s performance hereunder violates any applicable law, rule or regulation (except that Customer and Customer Affiliates shall be solely responsible for their use of any Recorded Call Services and for their use or disclosure of any information obtained through any Recorded Call Services) or infringes the rights of any third party, including but not limited to intellectual property rights. Customer at its own expense, will indemnify, defend and hold harmless Marchex and Marchex’s affiliates, employees, representatives and agents from and against any Claim for, including without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with: (i) the Customer Data (as hereinafter defined) Business Content, Marks or Customer Media or contents therein; (ii) any Customer or Client use of Recorded Call Services in violation of the applicable terms and conditions; (iii) Customer or Client’s breach of any term, condition, agreement, representation or warranty hereunder; (iv) Customer or Client’s telemarketing or other marketing activities; or (v) Customer or Client’s use of the Services, the Data, the Marchex Numbers and the Confidential Information. Although Marchex has no obligation to monitor the Business Content provided by Customer or Customer’s use of the Services, Marchex may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the Agreement.

1.8 Reservation of Rights. This Agreement is not intended to, and shall not affect, ownership by either party of, or rights of either party in, any of its intellectual property rights, content, products and services, and nothing set forth in this Agreement shall be construed as the assignment or transfer of any ownership rights in any of the foregoing from one party to the other. Other than the express licenses set forth herein, nothing in this Agreement, and nothing in any statement made in connection with this Agreement, will be deemed a license (by implication, estoppel or otherwise) under either party’s patent rights or other intellectual property rights. Any Data collected or created hereunder, during the Service Term and through the Customer’s account, that is specific to and in a form identifiable with Customer, Client or their respective advertisers or merchant users is the intellectual property of Customer (collectively, the “Customer Data”), subject to Marchex’s non-exclusive right to use such Data in connection with the delivery of its Services and operation of its business, which may include, without limitation, analyzing and reporting Customer Data on an aggregated basis, and without identifying Customer as the source thereof and without disclosing Personal Information. For the avoidance of doubt, Marchex uses all Data collected in connection with its business and operations, which may or may not include certain aggregated Customer Data in an unidentifiable form, in connection with, including, without limitation, the delivery of its Services and conduct of its business and operations, advancing and improving existing products and services, creating new and enhanced product and services, and development of market and industry intelligence and expertise, all of which in such form shall be and remain the intellectual property of Marchex (collectively, “Marchex Operations Data”). Neither party’s performance according to the terms and conditions of this Agreement will in any way broaden the intellectual property rights of the other party. Both parties reserve all rights not expressly granted.

2. CONFIDENTIALITY AND CUSTOMER DATA.

2.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). “Confidential Information” includes any non-public information of a Disclosing Party such as business plans, products, technical data, specifications, documentation, rules and procedures, contracts, presentations, know-how, product plans, business methods, product functionality, services, data, customers, markets, competitive analysis, databases, formats, methodologies, applications, developments, inventions, processes, payment, delivery and inspection procedures, designs, drawings, algorithms, formulas, or information related to engineering, marketing, or finance. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without fault of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is otherwise required to be disclosed by court order, law, regulation, securities exchange requirement, receipt of a criminal or civil subpoena, or written request from governmental authorities requesting information in connection with a criminal proceeding, or (f) any and all exigent circumstances involving individual or public health, rescue or safety. Notwithstanding the foregoing, Marchex shall have the non-exclusive right to use such Confidential Information in connection with the delivery of its Services and operation of its business, which may include, without limitation, reporting to Marchex’ customers and potential customers, on an aggregated basis, data related to and/or comprised of measures of the Services’ performance, without identifying Customer as the source thereof and without disclosing Personal Information. Customer represents and warrants that all Personal Information received from Marchex will be used for marketing purposes only. Personal Information will not be used, in whole or in part, for purposes of establishing a consumer’s eligibility for credit or insurance or for employment purposes. For purposes of this agreement “Personal Information” shall mean personally identifiable or other personal records or information. Without limiting any other provision of this Agreement, each party shall retain all right, title and interest in and to its Confidential Information, including all intellectual property rights inherent therein or appurtenant thereto. For the avoidance of doubt, the parties acknowledge and agree that Confidential Information includes Personal Information, including, without limitation, call-related, caller related and call-receiver related Personal Information that may be included in the Data processed under this Agreement.

2.2 All archived Customer Data shall be governed by the then-effective Marchex storage and deletion protocols for data, including, without limitation, maximum storage volumes, automatic and mandatory deletion protocols, maximum storage periods, among others. During the term of the Agreement, subject to the foregoing, Customer may access and retrieve such Customer Data for a period of up to six (6) months from date of initial storage. Notwithstanding the foregoing, unless otherwise limited or restricted by applicable law or regulation, Marchex may, but shall not be obligated to, maintain archived Customer Data following termination of the Agreement. Furthermore, in the event that Marchex in its reasonable professional discretion determines that such Customer Data may not be deleted due to any outstanding compliance or regulatory matters, Marchex reserves the right to maintain such storage until the matter has been resolved to its satisfaction. Each party shall comply with the applicable Agreement terms and applicable laws and regulations, as each may apply to the party and their respective obligations thereunder. Company may disclose any Customer Data to law enforcement or other governmental authorities upon receipt of request therefrom, without incurring any liability for such action. Customer acknowledges that Company may change its practices and limitations concerning storage of Customer Data, at any time and that notification of any such changes will be posted on Company’s website or within Customer’s administration pane, or sent by email. Customer further agrees that this feature is provided as a convenience to Customer only and Company has no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store, any messages and/or other communications maintained or transmitted by the Services.

3. PAYMENT OF FEES

Customer will pay Marchex the then applicable fees for the Services as set forth in the Order Form and the relevant Attachments (the “Fees”). Customer may be obligated to pay additional fees over the Term in the event that Customer requests any supplemental or custom Services not set forth in the Order Form. Upon the request of Customer, Marchex may provide a rate card for any supplemental or customized Services. Customer agrees to pay in full the additional Fees for supplemental or customized Services requested by Customer based on the Marchex rate card delivered to Customer, unless the parties otherwise agree pursuant to an amended set of terms in a mutually signed Order Form. Unless otherwise indicated, all dollar amounts referred to in this Agreement or the Order Form are in the lawful money of the United States of America. Marchex reserves the right to require a cash deposit as security payment for the Platform Services Fees. Furthermore, Marchex reserves the right to change the Fees or applicable charges and to institute new charges and Fees after the end of the initial Service Term or then current renewal term, upon thirty (30) days prior written notice to Customer (which may be sent by email). If Customer’s use of the Services exceeds those Services set forth in the Order Form, Customer agrees to pay the additional fees that apply. Customer will make payment no later than thirty days after the end of the applicable month, or the Services may be terminated immediately by Marchex. Any disputes with respect to such payment shall be made by Customer no later than five days after the end of the applicable month. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all carrier fees, surcharges and taxes associated with Services, other than taxes based on Marchex’s net income.

4. TERMINATION

4.1 Subject to earlier termination as provided below, the effective term of this Agreement (the “Service Term”) shall first be for the period specified as the initial Service Term in the Order Form, and shall be automatically renewed for additional periods of the same duration, unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Either party may terminate this Agreement for convenience at any time upon sixty (60) days’ prior written notice.

4.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ prior written notice, if the other party breaches any of the terms or conditions of this Agreement (including, without limitation, the Marchex right to terminate in the event of Customer’s failure to meet the Monthly Revenue Commitment set forth in the Order Form), and such breach remains uncured at the end of such thirty (30) day period. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Notwithstanding the foregoing, in the event that Customer does not meet the business credit standards established by Marchex (which may be modified from time to time), or there is a material adverse change in the credit profile of Customer during the Service Term, Marchex may elect any or all of the following: to terminate or suspend performance immediately; and to require pre-payment for the Services hereunder or other commensurate payment terms.

4.3 Subject to the foregoing, upon termination hereof, at the request of the other party, each party shall return to the other party or destroy, and certify in writing as to such destruction, the other party’s Confidential Information. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification, and limitations of liability.

5. DISCLAIMER

5.1 MARCHEX DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, REGARDING THE LEVEL OR NUMBER OF IMPRESSIONS OF OR CALLS ON ANY ADVERTISEMENT OR PROMOTION, THE TIMING OR PLACEMENT OF DELIVERY OF SUCH IMPRESSIONS AND/OR CALLS, OR THE AMOUNT OF ANY REVENUE TO BE EARNED BY CUSTOMER UNDER THIS AGREEMENT. COMPANY AND ITS VENDORS SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES AND MAKE NO REPRESENTATIONS WITH RESPECT TO THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, INTEROPERABILITY OR CONTENT OF CONSUMER DATA. FURTHERMORE, COMPANY AND ITS VENDORS SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES AND MAKE NO REPRESENTATIONS WITH RESPECT TO CUSTOMER’S USE OF THE RECORDED CALL MESSAGE FUNCTIONALITY OR ANY CALL RECORDING.

5.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND MARCHEX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. MARCHEX MAY IN ITS SOLE DISCRETION REMOVE ANY DATA FROM ITS SERVERS AT ANY TIME FOR ANY REASON.

6. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER MARCHEX AND ITS SUPPLIERS, ON THE ONE HAND, NOR CUSTOMER, ON THE OTHER HAND, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) FOR ANY MATTER BEYOND SUCH PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO MARCHEX FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, ANY FAILURE OF CUSTOMER OR ITS CLIENTS TO COMPLY WITH APPLICABLE LAW OR REGULATION SHALL NOT BE COVERED BY THE FOREGOING LIMITATION OF LIABILITY.

7. GOVERNMENT MATTERS

Customer may not remove or export from Customer’s jurisdiction or allow the export or re-export of the Services or anything related thereto in violation of any applicable export control or similar restrictions, laws or regulations. Marchex is not a telephone company. Marchex purchases telecommunications services and uses such services to provide enhanced service products to Customer. If at any time Marchex’s right to allocate Marchex Numbers or otherwise provide the Services to Customer is impaired or regulated by any governmental or quasi-governmental entity, including, without limitation, the U.S. Federal Trade Commission, the U.S. Federal Communications Commission or any state public utility commission, Marchex shall have the right to terminate, suspend or amend this Agreement automatically upon written notice and to cause Customer to remove or withdraw any advertising material containing any Marchex Number. Marchex shall have no liability or obligation to Customer of any kind arising out of such a termination, suspension or change in Services, as the case may be.

8. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Customer may not assign or sublicense this Agreement without the prior written consent of Marchex. This Agreement and Order Form are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement and Order Form. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever, it being agreed that the relationship of the parties is that of independent contractors.

All notices under this Agreement and Order Form will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement and Order Form shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. Customer irrevocably submits to venue and jurisdiction in the federal and state courts in King County, Washington for any dispute arising out of or related to this Agreement, and waives all objections to jurisdiction or venue of such courts and agrees not to commence nor prosecute any such dispute other than in such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Marchex may modify the terms and conditions of this Agreement by posting the revised terms and conditions to its website. Customer’s continued participation in the Services following such changes signifies Customer’s acceptance of such modification.

Effective June 1, 2010

These Media Services Terms and Conditions supplement the Call Analytics Terms and Conditions (located at: http://www.marchex.com/legal/ terms-and-conditions-ca or such successor URL(s) implemented by MARCHEX from time to time), and apply to any Customer using the Media Services.  Any capitalized terms used herein but not defined shall have the meaning ascribed to it in the Voice Services Terms and Conditions.

In connection with its use of the Media Services, Customer acknowledges and agrees that:

 
1. Pursuant to the terms of the   applicable Order Form, and during the Service Term, Customer may elect   to purchase for itself, or on behalf of Clients, certain Marchex Media   Services (as hereafter defined).
 
2. "Marchex Media Services"  may include the display and publication of Business Content (as defined   below) together with the applicable Marchex Numbers on Marchex-designated   online or offline media, which may be developed or customized for Customer   or Clients (such as proxy web sites and business profile pages, among   others), Marchex owned or operated media (such as business information   and local search Web sites, among others) or third party media approved   by Marchex (collectively, "Marchex Media").
 
3. Customer agrees to deliver,  or allow Marchex to access (including from Customer’s Web site or other   publicly available sources), as the case may be, all material or content   required or requested by Marchex in the format specified by Marchex   ("Business Content") at least seven (7) business days prior   to the relevant publication date, or such other later date as may be   requested by Marchex during the Service Term.
 
4. In connection herewith, Customer   hereby grants Marchex the non-exclusive right during the Service Term   to use, reproduce, modify, create derivatives of, publicly display and   perform, distribute and otherwise fully exploit the Business Content   (and derivatives thereof) and to use such designated Customer or Client   trademarks, service marks, trade names, logos, ad copy and other identifiers   provided or made publicly available by Customer or Clients ("Marks")  in connection with the publication thereof on Marchex Media and, in   the discretion of Marchex, the registration of custom URLs for a Customer-or   Client- branded Internet presence within Marchex Media, as the case   may be.
 
5. Marchex may modify the terms   and conditions of this Agreement by posting the revised terms and conditions   to its website. Customer’s continued participation in the Service following   such changes signifies Customer’s acceptance of such modification.

Effective June 1, 2010

Marchex, Inc., its subsidiaries and affiliates (collectively “we” or “Marchex”) respect your privacy. Our purpose in collecting information from you is to help us better understand our user base and to accordingly provide quality service. We will not willfully disclose any individually identifiable information about you to any third party without first receiving your permission, as explained in this privacy statement. Furthermore, we do not specifically target children under the age of 13, nor do we knowingly collect, without parental consent, individually identifiable information from such children.

What Information Do We Collect?

We may request that an entity applying for an account with Marchex provide us with certain personal information (such as its name, email address, etc.) relevant to our provision of the various services offered on our site. We do not collect any personal information other than that which is specifically and knowingly provided to us. When we request information, we explain how it may be used and give you an opportunity to request that the information not be used for those purposes. Any communications sent from us in the future will include a means to opt out, such as through an opt-out link in the communication.

Cookies and Other Monitoring Technologies?

Like most sites, for account management purposes, Marchex may use cookies, web beacons and other monitoring technologies to compile anonymous statistics about site users. Cookies are data files stored on your computer that identify you as a unique user. In limited instances, we may allow third party business partners to monitor our sites for the purpose of reporting user traffic, statistics, advertisements, “click-throughs” and/or other activities and to set their cookies on your computer, subject to agreement between such business partner and us and subject to such business partner’s privacy policy. Cookies and related monitoring technologies enable us to track user trends, preferences and patterns. We may also receive and record information from your computer and browser, including your IP address, site(s) you visited and keyword searches you conducted on our site(s). The information helps us provide improved services, including customized advertising.  You can visit our site without using cookies. Most browsers permit users to refuse cookies or to be notified before a cookie is accepted. In addition, you may go to http://www.networkadvertising.org/managing/opt_out.asp to opt-out of most third party tracking.

Links to Other Sites?

The Marchex website contains links to other sites. Those sites may send their own cookies to users, collect data, or solicit personal information. We are not responsible or liable for the privacy practices or content of such sites since we do not control them.

With Whom Do We Share Information?

Marchex may share non-personal and non-personally identifiable information about our users with advertisers, business partners, sponsors, and other third parties. Such non-personally identifiable information may include your IP address, sites(s) you visited and keyword searches you conducted on our site(s). This information may allow such third parties to provide you customized advertising.

In addition, Marchex may partner with other parties in connection with the various services offered on our site, such as credit card processors or email delivery services. In such instances, we may share limited personal information that is necessary for the third party to provide its services. These companies are prohibited from using this information for any other purpose.

Marchex may also provide personal information when disclosure may be required by law (e.g., subpoenas, search warrants and court orders). We may also determine that such action is reasonably necessary to protect a party’s rights, property, or well-being. This action may include exchanging information with other companies and organizations for the purposes of fraud detection or protection, or in other situations involving suspicious or illegal activities.

Business Transfers?

In the event of a transfer of ownership of Marchex, such as acquisition by or merger with another company, a user’s personal information will, in most instances, be part of the assets transferred.

Consent and Changes to this Privacy Statement?

By using our site or services, you consent to the collection and use of your information as we have outlined in this privacy statement and consent to our Terms of Use. Additionally, if you are using any of our services, we may also collect and use information in accordance with such service’s applicable Terms and Conditions. Marchex may decide to change this privacy statement from time to time. If and when we do, we will post the changes on this page so that you are always aware of the information we collect, how we use it, and under what circumstances we disclose it.

Who Can I Ask If I Have Additional Questions?

Feel free to contact us at any time with any questions you may have regarding our privacy statement.

Effective October 25, 2010

These terms and conditions (the "Terms and Conditions") shall constitute a legally binding and enforceable agreement between you ("Distribution Partner") and, as specified by the corresponding Distribution Program Term Sheet or Insertion Order,  one or more of the following wholly-owned subsidiaries of Marchex, Inc.,  a Delaware corporation: Marchex, LLC, Inc. (f/k/a Marchex Adhere SSC,  LLC), a Delaware limited liability company and successor in interest to Marchex Adhere PPC, Inc. (f/k/a Enhance Interactive, Inc. f/k/a ah-ha.com,  Inc.); or Marchex Sales, Inc. (f/k/a MDNH, Inc.), a Delaware corporation;  (each, a "Company"). By participating in one of the distribution programs of a Company (including, but not limited to, Paid Listings,  Guaranteed Inclusion, CoBrand Search and Contextual Integration) (the "Distribution Program"), Distribution Partner agrees to be bound by the terms set forth in these Terms and Conditions and the terms set forth on the corresponding Distribution Program Term Sheet or IO between Distribution Partner and such Company (the "Term Sheet").

These Terms and Conditions shall be deemed incorporated by reference into the Term Sheet; provided, that if any provision of the Term Sheet conflicts with any provision of these Terms and Conditions, the provision of the Term Sheet shall prevail. These Terms and Conditions and the Term Sheet shall be referred to collectively herein as the "Agreement."

A. DEFINITIONS.

For purposes of the Agreement, the following terms will have the indicated meanings:

 
1. "Advertiser" means   any third party or agent thereof who has entered into a contractual   relationship with the Company that obligates the third party to pay   Company for Qualifying Click- throughs to that third party’s Web site.
 
2. "Distribution Partner   Marks" means trademarks, service marks or graphical brand features   of Distribution Partner in which Distribution Partner has prior rights.
 
3. "Distribution Partner   Media" means the Web site(s), newsletter(s) and/or other forms   of media identified by Distribution Partner and approved in advance   in writing by Company (or otherwise expressly set forth on the Term   Sheet) for the specific purpose of distributing Licensed Materials in   accordance with this Agreement; unless specifically set forth in writing   by Company, Distribution Partner shall not include any pop-up or pop-under   displays.
 
4. "Contextual Integration"  means an advertisement created dynamically or statically by Company,  which can take the form of pop-ups, pop-unders, sidebars, banners or   button/text links and which is served through Distribution Partner Media.
 
5. "CT" or "click-through(s)"  means the action of a User clicking on a hypertext link or image link.
 
6. "Licensed Marks"  means trademarks, service marks or graphical brand features of Company   in which Company has prior rights.
 
7. "Licensed Materials"  means Company API, Company Element(s) and the Licensed Marks provided   by Company to Distribution Partner in accordance with this Agreement.
 
8. "Company API" means   the proprietary HTTP/XML data feed programming interfaces of Company   that facilitate the feed containing the Company Element(s) in accordance   with this Agreement.
 
9. "Company Element"  means, as applicable to Distribution Partner’s Distribution Program:  Company Results, Contextual Integration, Search Windows and/or Search   Results Page.
 
10. "Company Result"  means the search results, including Paid Listings, provided by Company   in response to a Query.
 
11. "Net Revenue" means   the amounts recognized by Company for Qualifying CTs, less (i) amounts   attributable to Collection Risk and Distribution Costs, and (ii) any   refunds paid to the Advertisers by Company; plus or minus any Traffic   Quality Adjustment, as applicable. "Collection Risk" shall   mean those costs associated with collection of revenue, including credit   card charges, charge backs, bad debts, invoice and traffic adjustments   and Advertiser incentives; "Distribution Costs" shall mean   those costs associated with the distribution of the Paid Listings such   as Web search fees, network fees, agency and referral fees and reporting   and tracking costs; and "Traffic Quality Adjustment" shall   mean any additions or deductions, as applicable, associated with the   quality of User traffic delivered by Distribution Partner and Distribution   Partner Media, as the same is determined in the sole discretion of Company.  In determining the amount or application of any Traffic Quality Adjustment   Company may consider, among other factors, the geographic origin, source   and method of acquisition of such User traffic, the rate(s) of conversion   associated with such User traffic, the click- through rate of such User   traffic, the overall impact of such User traffic on network quality,  and such other factors as Company may deem relevant from time to time.  Company reserves the right to change such factors and make such assessments   on an individual partner as well as network basis. As provided in Section   B.2., Company shall be solely responsible for assessing and determining   the quality of User traffic and click-throughs delivered by Distribution   Partner and Distribution Partner Media.
 
12. "Non-Qualifying CT"  means click-throughs that result from any or all actions that are: (a)  initiated or executed employing any non-human processes including robots,  spiders, scripts (or other software), mechanical automation of clicking   applied to the User’s mouse or keyboard or other non-human clicking   agents; (b) low quality (or without quality) in nature or origin according   to the sole and reasonable discretion of Company and/or the Advertiser;  (c) not converting or converting at a low or unacceptable rate as determined   by Company; or (c) the result of probable sources of disqualifying activity,  including, but not limited to, a User repeatedly clicking on a particular   Company Element within a finite period of time or a click-through from   a blocked Internet Protocol address. Company shall have the right, in   its(their) sole and reasonable discretion, to deem any click-through   a Non-Qualifying CT.
 
13. "Paid Listings"  means those search results constituting paid advertisements from Advertisers   that are provided by Company in response to a Query.
 
14. "Qualifiying CT"  means click-throughs that direct the User’s Internet browser to a server   of Company and ultimately to the Web site of an Advertiser, excluding   all Non-Qualifying CTs.
 
15. "Query" means any   search query initiated by a User on Distribution Partner’s Web site(s).
 
16. "Results Page"  means (i) with respect to the Paid Listings Distribution Program, those   Web pages within Distribution Partner’s Web site(s) that are displayed   in response to a Query or (ii) with respect to the CoBrand Search Distribution   Program, those Web pages hosted by Company servers and displayed in   response to a Query.
 
17. "Search Window"  means the Company graphical element in which Users enter Queries in   order to retrieve Company Results.
 
18. "User" means a   human user of Distribution Partner Media.

B. DATA FEED INTEGRATION; CLICK QUALITY AND TRAFFIC QUALITY REQUIREMENTS; IMPLEMENTATION AND DISPLAY; ADDITIONAL REMEDIES.

 
1. Data Feed Integration; Query   Volume. Company agrees to provide Distribution Partner the Company API   so that Distribution Partner may display the Company Element on any   Distribution Partner Web site(s) and/or products. Distribution Partner   will integrate the Company API within seven (7) days of receipt of same   from Company. Company reserve(s) the right to limit the number of Queries   under this Agreement for any period during the Term hereof. 
    
 
2. Click Quality and Traffic   Quality. The parties recognize that it is essential that ability of   Company to generate revenue hereunder is directly dependent on the quality   of the click-throughs and User traffic delivered by Distribution Partner   and Distribution Partner Media. In order to ensure high quality traffic,  Distribution Partner agrees to neither: (a) directly or indirectly provide   incentives for clicks on links in any fashion, including but not limited   to, paying visitors to click on links, offering entries into sweepstakes   or donating money from clicks to organizations or charities; (b) directly   or indirectly use any automated methods to create Non-Qualifying CTs;  nor (c) directly or indirectly provide Non-Qualifying Clicks. Company   shall be solely responsible for determining whether a click-through   is a Qualifying CT or a Non-Qualifying CT. With respect to those Qualifying   CTs, Company shall be solely responsible for determining the quality   of such click-through. Company shall also be solely responsible for   determining the quality of User traffic delivered by Distribution Partner   and Distribution Partner Media. If Company should determine that Distribution   Partner is violating either (a), (b) or (c) above, Company may immediately   terminate this Agreement and, in addition to all other remedies, withhold   payment of any Revenue Share Payment generated for that pay period.  Distribution Partner will also be responsible for refunding any funds   paid for previous periods during which such activities may have taken   place. Distribution Partner will inform Company immediately if it becomes   aware or has legitimate concern of any fraudulent or questionable activity.  Such activity includes but is not limited to activities such as automated   traffic generation (for, example traffic generated using scripts, bots   or other programs) or misleading links that result in Click-throughs   without knowledge of the user. Company may, at its sole discretion,  limit or block Click-throughs from sources of traffic or sites that   it considers questionable, for any reason. Determination of Company   regarding such sources of traffic shall be deemed final. Distribution   Partner understands that Company may use all information about a particular   source of traffic to determine click quality and legitimacy. Therefore,  Distribution Partner agrees to allow all clicks generated from a specific   sub-affiliate to reach Company’s servers, except for clicks from sources   previously blocked by Company. For example, if Distribution Partner   determines that a certain click came through a "proxy" server,  Distribution Partner must allow this click to reach Company servers.
    
 
3. Distribution Partner Media   Implementation. Distribution Partner shall not display the Licensed   Materials on any Distribution Partner Media that:

     
• violates any applicable laws   or regulations;
 
     
• infringes the property or   other rights of a third party;
     
• contains adult-oriented or   age-restricted products or services without applicable or required age-  verification services;
     
• contains obscene, hate-related,  or other content deemed objectionable in the sole discretion of Company;
     
• is within software installed   on Users’ computers ("spyware," "adware," or any   similar software), it being agreed that Distribution Partner shall display   the Licensed Materials on Web pages only, and not display the Licensed   Materials through any such software, nor cause the Licensed Materials   to appear through such software, directly or indirectly;
     
• is directed primarily to users   outside of the United States and Canada (unless otherwise expressly   set forth on the Term Sheet); or
     
• (i) Has not been previously   approved in writing, or which (ii) has been at any time prohibited from   inclusion under this Agreement for any reason by Company.
 

 
4. Display of Licensed Materials.  With respect to the Paid Listings, unless otherwise expressly set forth   on the Term Sheet, Distribution Partner shall:

     
• -display the Paid Listings     in the order received from Company;
     
• -not modify, change or edit     the Paid Listings, and display the Paid Listings in the form provided     by Company;
     
• -not use the Paid Listings     on any form of untargeted display; and
     
• -not display any price-related     data with the Paid Listings. 
       
 

 
5. Additional Remedies. If Company   determine(s) that Distribution Partner or any of its partners or affiliates   has breached or violated any of the foregoing agreements or requirements,  Company may immediately terminate this Agreement and, in addition to   all other remedies, withhold payment of any corresponding Revenue Share   Payment (as defined below). Distribution Partner shall be responsible   for refunding any funds paid for previous periods during which, in the   sole discretion and determination of Company a violation of this Section   B has occurred. Distribution Partner is wholly responsible for the activities   of its affiliate(s) in their compliance with the terms of this Agreement.  Distribution Partner shall be liable to the fullest extent allowable   under law and this Agreement for any breach of the agreements or violations   of the requirements hereunder (whether resulting from the actions of   Distribution Partner or any of its partners or affiliates or otherwise).  This provision shall not be deemed to limit in any way the remedies   available to Company under contract or at law.

C. PAYMENT.

 
1. Revenue Share Payments. Subject   to the Minimum Payment (as defined below), Company will make monthly   revenue share payments (the "Revenue Share Payments") to Distribution   Partner as a percentage of Net Revenue. The percentage of Net Revenue   applicable to the Revenue Share Payments hereunder shall be set forth   on the relevant Term Sheet signed and delivered by the parties or accepted   online by Distribution Partner, as the case may be. Such percentage   shall be determined by the average number of daily Qualifying CTs for   the applicable calendar month according to the schedule set forth in   the Term Sheet. Revenue Share Payments are due and payable to Distribution   Partner forty-five (45) days after the end of the applicable month. 
    
 
2. Minimum Payment. Company shall   only be required to make Revenue Share Payments if the compensation   accrued by Distribution Partner in a given month exceeds one hundred   dollars U.S. ($100). If the compensation accrued by Distribution Partner   in a given month is less than one hundred dollars U.S. ($100), then   no Revenue Share Payment shall be made for that period and Distribution   Partner shall relinquish the Revenue Share Payment for such month. 
    
 
3. Tracking and Reporting. The   parties agree that Company will be solely responsible for: (a) tracking   and calculating Qualifying CTs delivered and all other traffic measurements   or data; (b) determining the quality of each Qualifying CT; and (c)  reporting and calculating Net Revenue and Revenue Share Payments. No   other traffic measurements or calculations will be deemed relevant nor   affect either party’s performance under this Agreement. Distribution   Partner shall have no longer than five (5) days from the last day of   the month prior to dispute any material discrepancy pertaining to the   data underlying the Revenue Share Payments. Failure to report such discrepancy   within such five (5) day period shall be considered by both parties   as a forfeiture of Distribution Partner’s right to dispute. In the event   that the parties’ traffic measurements differ by an amount in excess   of ten percent (10%) of the total amount for any calendar month period,  as reported by Distribution Partner within the foregoing dispute period,  the parties shall work together in good faith to resolve any such discrepancies.  Notwithstanding the foregoing, the traffic measurements and data of   Company shall be determinative of the payment obligations hereunder.

D. LICENSES AND OWNERSHIP.

 
1. License by Company. Subject   to the terms and conditions of this Agreement, Company grant(s) to Distribution   Partner a revocable, limited, non-exclusive, non-assignable, non-transferable,  non- sublicensable license during the Term (the "License")  to use: (a) the Company API solely for the purpose of facilitating the   duties of the parties in accordance with this Agreement and to reproduce,  reformat and publicly display the other Licensed Materials provided   by Company on Distribution Partner Media in accordance with this Agreement;  and (b) the Company Element and Licensed Materials for the purpose of   displaying the Company Element on Distribution Partner Media. Distribution   Partner shall not cache or store any Company Element or any other Licensed   Material. This License shall be subject to the further limitations set   forth in this Agreement, without limitation, those set forth in Section   B, and those limitations that Company may implement from time to time   with respect to its Distribution Program and published on its Web site.  Distribution Partner has an affirmative obligation hereunder to monitor   the Distribution Program terms and guidelines at the URL which Company   may from time to time designate. 
    
 
2. Information and Data Collected   by Company. All information and data provided to Company by users of   Distribution Partner Media or otherwise collected by Company from Users   of Distribution Partner Media will be retained and owned exclusively   by Company. 
    
 
3. Ownership; Reservation of   Rights. This Agreement is not intended to, and shall not affect, ownership   by a party of any of its intellectual property rights, content, products   and services, and nothing set forth in this Agreement shall be construed   as the assignment or transfer of any ownership rights in any of the   foregoing from one party to the other. Other than the express license   set forth in this Section D, nothing in this Agreement, and nothing   in any statement made in connection with this Agreement, will be deemed   a license (by implication, estoppel or otherwise) under a party’s patent   rights or other intellectual property rights. Nothing in this Agreement,  and nothing in any statement made in connection with this Agreement,  will be deemed an admission by a party that any existing, planned or   contemplated products, services or technology of the other party infringes   or does not infringe its (or a third party’s) patent or other intellectual   property rights or that the other party’s (or a third party’s) patent   or other intellectual property is valid. Likewise, no party’s performance   according to the terms and conditions of this Agreement will in any   way broaden the intellectual property rights of another party. The parties   reserve all rights not expressly granted. Distribution Partner agrees   to comply with the express terms of the License and acknowledges that   any use in breach of the License or otherwise outside the express scope   of the License shall be deemed a material breach under this Agreement.  Distribution Partner further agrees not to modify, alter, or deface   any of the trademarks, service marks, or other intellectual property   made available through the Distribution Program. Distribution Partner   agrees not to hold itself out as in any way sponsored by, affiliated   with, or endorsed by Company or any of its affiliates, licensors, or   service providers. In addition, Distribution Partner agrees not to adapt,  translate, modify, decompile, disassemble, or reverse engineer the Distribution   Program or any software or program in connection with the Distribution   Program.

E. CONFIDENTIALITY; NON-SOLICITATION;  PRIVACY.

 
1. Definition. "Confidential   Information" means any information disclosed by a party to another   party during the Term (and any renewal terms), either directly or indirectly,  in writing, orally or by inspection of tangible objects. All of the   terms of this Agreement and all data generated pursuant to this Agreement   will be deemed "Confidential". Confidential Information will   not, however, include any information that: (a) was publicly known and   made generally available in the public domain prior to the time of disclosure   by the disclosing party; (b) becomes publicly known and made generally   available after disclosure by the disclosing party to the receiving   party through no action or inaction of the receiving party; (c) is already   in the possession of the receiving party at the time of disclosure by   the disclosing party; (d) is obtained by the receiving party from a   third party without a breach of such third party’s obligations of confidentiality;  or (e) is independently developed by the receiving party without use   of or reference to the disclosing party’s Confidential Information. 
    
 
2. Protection of Confidential   Information. With respect to Confidential Information other than rights   expressly granted under Section D, the receiving party agrees: (a) not   to disclose any Confidential Information to any third parties; (b) not   to use any Confidential Information for any purpose other than to exercise   its rights or perform its obligations under this Agreement; and (c)  to keep the Confidential Information confidential using the same degree   of care the receiving party uses to protect its own confidential information,  as long as it uses at least reasonable care. If a party is requested   or required by a government agency or judicial process to disclose the   Confidential Information of another party, then the receiving party   will notify the disclosing party of such request and will reasonably   cooperate to seek confidential treatment or to obtain an appropriate   protective order to preserve the confidentiality of the Confidential   Information. 
    
 
3. Non-Solicitation. During the   Term and for a one-year period following expiration or termination of   this Agreement, Distribution Partner agrees not to solicit any Advertiser   of whom it has learned through its association with Company. 
    
 
4. Privacy. Distribution Partner   has reviewed the applicable Company privacy policy (as such policy may   be revised from time to time in the sole discretion of Company) and   agrees to comply with its terms with respect to any users of the Paid   Listings on the Distribution Partner Media. Distribution Partner has   an affirmative obligation under this Agreement to monitor the terms   of the privacy policy published at the URL which Company may from time   to time designate. The relevant privacy policy is currently located   at: www.marchex.com/legal/privacy-statement

F. REPRESENTATIONS AND WARRANTIES.

 
1. Company Warranties. Company   represents and warrants that it has the full power and authority to   enter into this Agreement. Company further represents and warrants that,  as of the Effective Date and at all times throughout the Term, it has   all consents, approvals, licenses and permissions, necessary for Company   to perform all of its obligations hereunder and for Distribution Partner   to exercise all of its rights hereunder. 
    
 
2. Distribution Partner Warranties.  Distribution Partner represents and warrants that: (a) it has full power   and authority to enter into this Agreement; (b) as of the Effective   Date and at all times throughout the Term, it has all consents, approvals,  licenses and permissions, necessary for Distribution Partner to perform   all of its obligations hereunder and for Company to exercise all of   its rights hereunder; (c) this Agreement constitutes its legal, valid   and binding obligation, enforceable against it in accordance with its   terms; (d) its obligations under this Agreement do not violate any law   or breach any other agreement to which such party is bound; and (e)  it has all right, title and interest, or valid license to use, the Distribution   Partner Marks, and that its grant of rights associated therewith do   not violate any intellectual property or other proprietary rights of   any third party. Distribution Partner further represents and warrants   that the Distribution Partner Media and the display of Paid Listings   hereunder comply and will continue to comply during the Term with the   terms of the License, the agreements and requirements set forth under   this Agreement and the guidelines that may be in effect from time to   time for the Distribution Program.

G. INDEMNIFICATION.

 
1. Company Indemnification. Company,  at no expense to Distribution Partner, will indemnify, defend and hold   harmless Distribution Partner and Distribution Partner’s affiliates,  employees, representatives and agents from and against any claim, demand,  action, investigation or other proceeding, including but not limited   to all damages, losses, liabilities, judgments, costs and expenses arising   therefrom, brought by any third party against Distribution Partner (collectively,  a "Distribution Partner Claim") to the extent that Distribution   Partner Claim is based on, or arises out of an allegation that Company’s   Distribution Program infringes any copyright, trade secret, trademark   or patent (limited to patents issued in the United States only) of a   third party. 
    
 
2. Distribution Partner Indemnification.  Distribution Partner, at its own expense, will indemnify, defend and   hold harmless Company and the affiliates, employees, representatives   and agents of Company from and against any claim, demand, action, investigation   or other proceeding, including but not limited to all damages, losses,  liabilities, judgments, costs and expenses arising therefrom, brought   by any third party against Company (collectively, a "Company Claim")  to the extent that the Company Claim is based on, or arises out of:  (a) an allegation that Distribution Partner’s performance hereunder,  Distribution Partner Media or Distribution Partner Marks violate any   applicable law, rule or regulation or infringe the rights of any third   party, including but not limited to intellectual property rights, privacy   and publicity rights, claims of defamation, false or deceptive advertising   claims and consumer fraud; or (b) the existence, use and maintenance   of Distribution Partner Media or any content or activity over which   there is no control by Company related to Distribution Partner Media. 
    
 
3. Indemnification Procedure.  All indemnity obligations arising under this Section G will be subject   to the following requirements: (a) the indemnified party will provide   the indemnifying party with prompt written notice of any Distribution   Partner Claim, in the case that Distribution Partner is the indemnified   party, or any Company Claim, in the case that a Company is the indemnified   party (as applicable, a "Claim"), except that failure to give   prompt notice will not waive any rights of the indemnified party to   the extent that the rights of indemnifying party are not materially   prejudiced thereby; (b) the indemnified party will permit the indemnifying   party to assume and control the defense of the Claim upon the indemnifying   party’s written acknowledgment of its obligation to indemnify; and (c)  upon the indemnifying party’s written request, and at no expense to   the indemnified party, the indemnified party will provide the indemnifying   party with all available information and assistance reasonably necessary   for the indemnifying party to defend the Claim. The indemnifying party   will not enter into any settlement or compromise of the Claim (except   a settlement or compromise that: (i) is full and final with respect   to the Claim; (ii) does not obligate the indemnified party to act or   to refrain from acting in any way; (iii) does not contain an admission   of liability on the part of the indemnified party; (iv) dismisses the   Claim with prejudice; and (v) is subject to confidentiality, such that   no party may disclose the terms of the settlement or compromise without   the indemnified party’s prior written consent) without the indemnified   party’s prior written approval, which shall not be unreasonably withheld. 
    
 
4. DISTRIBUTION PARTNER AGREES   THAT THE DISTRIBUTION PROGRAM IS PROVIDED ON AN "AS IS," AND   "AS AVAILABLE" BASIS WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS,  IMPLIED, AND STATUTORY WARRANTIES ARE HEREBY DISCLAIMED BY COMPANY,  AND COMPANY’S AFFILIATES AND LICENSORS. NEITHER THIS AGREEMENT NOR ANY   DOCUMENTATION FURNISHED IN CONNECTION WITH THE DISTRIBUTION PROGRAM   IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY OF ANY NATURE. WITHOUT   LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE   BY LAW, COMPANY AND COMPANY’S AFFILIATES DISCLAIM ALL EXPRESS, IMPLIED,  AND/OR STATUTORY WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A   PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, SECURITY,  RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE DISTRIBUTION PROGRAM,  AS WELL AS ANY WARRANTIES THAT THE DISTRIBUTION PROGRAM WILL BE UNINTERRUPTED,  TIMELY OR ERROR FREE. COMPANY WILL NOT BE RESPONSIBLE FOR ANY CONTENT   PROVIDED BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO ADVERTISERS,  OR FOR ANY THIRD PARTY WEB SITES THAT CAN BE LINKED TO OR FROM THAT   PARTY’S WEB SITE. EXCEPT FOR INDEMNITY OBLIGATIONS ARISING UNDER THIS   SECTION G, AND ANY BREACH OF SECTION E, UNDER NO CIRCUMSTANCES WILL   COMPANY NOR COMPANY’S AFFILIATES BE LIABLE TO DISTRIBUTION PARTNER OR   ITS AFFILIATES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL   OR EXEMPLARY DAMAGES ARISING FROM THE SUBJECT MATTER OF THIS AGREEMENT,  INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BUSINESS, PROFITS OR GOODWILL   AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS   OF THE LEGAL THEORIES AND EVEN IF THAT PARTY HAS BEEN AWARE OR ADVISED   OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE APPLICABILITY   OF ANY LIMITED REMEDIES PROVIDED HEREIN, COMPANY’S AGGREGATE LIABILITY   UNDER THIS AGREEMENT SHALL NOT EXCEED AMOUNTS PAID BY COMPANY TO DISTRIBUTION   PARTNER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE BASIS OF THE   LIABILITY. DISTRIBUTION PARTNER ACKNOWLEDGES AND AGREES THAT THE FEATURES   OF THE DISTRIBUTION PROGRAM MAY BE CHANGED FROM TIME TO TIME IN THE   SOLE DISCRETION OF COMPANY.

H. TERM AND TERMINATION.

 
1. Term. This Agreement will   be effective as of the Effective Date set forth on the Term Sheet and,  unless terminated or renewed as set forth herein, shall have the term   set forth on the Term Sheet (the "Term"). This Agreement shall   be automatically renewed for subsequent periods equal to the period   specified in the Term Sheet or one year, whichever is longer ("Renewal   Term"), unless either Company or the Distribution Partner gives   the other written notice of cancellation at least thirty (30) days prior   to the expiration of any Renewal Term. 
    
 
2. Early Termination. Notwithstanding   Section H.1., this Agreement may be sooner terminated as follows. Either   Company or the Distribution Partner may terminate this Agreement effective   immediately if: (a) the other party is in default of any material obligation   under this Agreement, and such default has continued unremedied for   thirty (30) days after written notice from the non-defaulting party   or (b) the other party makes any assignment for the benefit of creditors   or has any petition under bankruptcy law filed against it, which petition   is not dismissed within sixty (60) days of such filing, or has a trustee   or receiver appointed for its business or assets or any party thereof.  Company may terminate this Agreement for any and no reason upon thirty   (30) days written notice to Distribution Partner or effective effective   immediately if: (a) Distribution Partner ceases to provide Users access   to any Distribution Partner Web site and such access denial has continued   unremedied for seven (7) days after written notice from Company; (b)  there is a change in the content, quality or functionality of any Distribution   Partner Web site that Company determines in its sole discretion to be   unfavorable to Company; (c) Distribution Partner fails to comply with   the provisions of Section B of this Agreement relating to click quality;  or (d) Company determines, in its sole discretion, that the quality   of traffic delivered by Distribution Partner is not satisfactory.
    
 
3. Effect of Termination. Upon   the effective date of termination, all rights and obligations of the   parties will terminate except: (a) each party’s duty of confidentiality   pursuant to Section E; (b) The duty of Company to make any outstanding   Revenue Share Payments to Distribution Partner in accordance with the   terms of Section C; and (c) each of Company and the Distribution Partner   shall be obligated to remove the other party’s intellectual property   from their respective Web sites, servers and systems and any marketing   materials.

I. MISCELLANEOUS.

 
1. Notice. Any notice required   or permitted by this Agreement will be given in writing and will be   deemed given as of the day they are received either by messenger, delivery   service or certified mail, postage prepaid, and (i) if to Company, addressed   to: Company, c/o Marchex, Inc., 520 Pike Street, Suite 2000, Seattle,  WA 98101, Attn.: General Counsel; (ii) if to Distribution Partner, addressed   to Distribution Partner at the address shown on the Term Sheet to the   attention of the General Counsel (unless otherwise specified by Distribution   Partner); or (iii) addressed to the other party at such other address   for which such party gives notice hereunder. 
    
 
2. Assignment; Binding Effect.  This Agreement will be binding upon and inure to the benefit of the   parties hereto and their permitted successors and assigns. Distribution   Partner may not assign these Terms and Conditions or the applicable   Distribution Program Term Sheet, or any of its rights hereunder, or   delegate any of its duties hereunder without the prior written consent   of Company. Company may assign and transfer this Agreement in whole   or in part and may delegate its(their) duties or assign its(their) rights   hereunder at any time. 
    
 
3. Governing Law; Venue; Attorneys’  Fees. This Agreement will be governed and construed, to the extent applicable,  in accordance with United States law, and otherwise, in accordance with   Washington State law, without regard to conflict of law principles.  The parties hereby irrevocably consent to the personal jurisdiction   of and venue in the state and federal courts located in King County,  Washington with respect to any action, claim or proceeding arising out   of or relating to this Agreement. In any action or suit to enforce any   right or remedy under this Agreement or to interpret any provision of   this Agreement, the prevailing party will be entitled to recover its   costs, including reasonable attorneys’ fees. 
    
 
4. Independent Contractors. Company   and Distribution Partner are independent contractors with respect to   each other, and nothing in this Agreement will be construed as creating   an employer-employee relationship, a partnership, agency relationship   or a joint venture between Company and Distribution Partner. 
    
 
5. Force Majeure. No party will   be liable hereunder (and their performance shall be excused under this   Agreement) by reason of any failure or delay in the performance of its   obligations (except for the payment of money) on account of strikes,  shortages, riots, insurrection, terrorism, fires, flood, storm, explosions,  earthquakes, Internet outages beyond the reasonable control of such   party, acts of God, war, governmental action, or any other cause that   is beyond the reasonable control of such party. 
    
 
6. Entire Agreement. This Agreement   and the Term Sheet constitute the entire agreement between the parties   with respect to the subject matter hereof and supersede any prior or   contemporaneous proposals, whether written or oral, with respect to   the subject matter hereof. Company reserves the right to change or modify   these Terms and Conditions and will post such changes or modifications   to a URL to be designated from time to time by Company (except that   such changes will not affect any specific terms set forth on the Term   Sheet). Distribution Partner’s continued participation in any Distribution   Program following such changes shall be deemed an assent to such changes. 
    
 
7. Severability. If any provision   of this Agreement is held or made invalid or unenforceable for any reason,  this Agreement will be construed as if that provision had never been   contained herein, but considering the original intentions of the parties. 
    
 
8. Waiver. No waiver of any breach   of any provision of this Agreement will constitute a waiver of any prior,  concurrent or subsequent breach of the same or any other provisions   hereof, and no waiver will be effective unless made in writing and signed   by an authorized representative of the waiving party. 
    
 
9. Section Headings. The section   headings contained herein are for reference purposes only and do not   in any way affect the meaning or interpretation of this Agreement.

Effective June 1, 2010

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 or more of the following wholly-owned subsidiaries of Marchex:  Marchex, LLC (f/k/a Marchex Adhere SSC, LLC f/k/a IndustryBrains, LLC),  a Delaware limited liability company and successor in interest to Marchex Adhere PPC, Inc. (f/k/a Enhance Interactive, Inc. f/k/a ah-ha.com,  Inc.); or Marchex Sales, Inc. (f/k/a MDNH, Inc.) a Delaware corporation (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/legal/traffic-quality); and Marchex Advertising Guidelines (http://www.marchex.com/legal/advertising-guidelines) (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. 
   
   1. 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. 
      
   2. 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 Marchex Connect NA, Inc., as an agreed upon allocation   of costs, irrespective of the retail amount of any media spend, Marchex   Connect NA, 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. 
      
   3. 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. 
      
   4. 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. 
   

   1. 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. 
      
   2. Credit Card Provisions   (if applicable).
      1. 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. 
         
      2. 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. 
         
      3. 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. 
         
   3. 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. 
      
   4. 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, Company   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. 
      
   5. 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. 
      
   6. 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. 
   
   

   1. 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. 
      
   2. 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. 
      
   3. 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. 
      
   4. 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, 520 Pike Street, Suite 2000, 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 June 1, 2010

Promotional Material:  For the purposes of these additional terms, Marchex Voice Service Inc. shall be referred to as "Company" and the Advertiser or Agency, as applicable, shall be referred to as "Customer." Customer agrees to deliver, or allow access (including from Customer’s Web site or other publicly available sources), as the case may be, all material/content required or requested by Company in the format specified by Company ("Promotional Material") to Company at least seven (7) business days prior to the relevant Start Date for such Advertisement. The Promotional Material must comply in all respects with Company’s then-current Policy. Customer hereby grants Company the non-exclusive right to use, reproduce, modify, create derivatives of, publicly display and perform, distribute and otherwise fully exploit the Promotional Materials (and derivatives thereof) and to use all Customer trademarks, service marks, trade names, logos, ad copy and other identifiers ("Marks") in connection with the Advertisements in any form of media (including, without limitation, internet, television, radio, billboards, print media, flyers, etc.) determined by Company (whether now existing or hereafter created).

Customer Representations:  Further, Customer represents and warrants that none of the Promotional Material or Marks will (a) infringe or violate any right of any third party, including without limitation, copyrights, trademark rights, and rights of privacy, publicity or freedom from defamation, (b) violate any governmental law, rule or regulation, including without limitation, laws relating to obscenity, (c) contain any virus, worm, Trojan horse or other contaminating or destructive feature, or (d) contain any offensive material.

Recorded Call Notice:  Customer understands that when a person (the "Caller") calls a Company Number that the Customer must automatically advise the Caller that each call is subject to recording and monitoring prior to the connection of the telephone call to the Customer through the Company Number (the "Recorded Call Notice").

Additional Representations: Customer represents, warrants and agrees that in connection with its use of the Services, that Customer has reviewed the legality of recording, monitoring, storing, and divulging telephone calls, that Customer is permitted to engage in those activities, and that Customer shall use the Company service in full compliance with all applicable laws and regulations. Customer represents and warrants that it has reviewed the proposed usage of the Company system with its legal counsel, and that Customer has established proper procedures to protect the privacy of, and otherwise comply with all applicable laws with respect to, Callers and the Call Receivers (defined below). In the event the Recorded Call Notice requires a revision in order to comply with applicable law, then Customer shall promptly notify Company in writing of that fact, proposing the exact language that Customer requires to comply with the applicable laws. Customer must notify Company in the event an advertiser notifies the Customer of a required revision to the Recorded Call Notice. Customer is solely responsible for, and Company shall have no liability with respect to, without limitation:  (1) the legality of recording, monitoring, storing and/or divulging telephone calls;  (2) the legality of the language used in the Recorded Call Notice; and (3) the legality of Customer’s use of information and data acquired from the Company services and any calls, Callers or Call Receivers; each of which shall be subject to the implementation and control of the Customer.

Call Receivers:  Customer agrees and acknowledges that applicable laws and regulations 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 receive telephone calls recorded by the Company Services (the "Call Receivers"). Customer agrees, acknowledges, represents and warrants that it will provide and/or obtain all notices, consents, and permission relating to Call Receivers, as required by applicable laws and regulations.

Indemnification:  Customer agrees to indemnify, defend and hold harmless Company and its affiliates, and each of their officers, shareholders, directors, employees and agents (collectively, the "Company Indemnified Parties"), from and against any and all third party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, charges, expenses (including attorneys’ and accountants’ fees and disbursements) and costs ("Claims"), incurred by, borne by or asserted against any of the Company Indemnified Parties to the extent such Claims relate to, arise out of or result from: (i) any intentional or willful conduct or negligence by Customer or byf any employee, agent or subcontractor of Customer; (ii) breach of any representation, warranty or covenant of Customer contained herein; or (iii) Customer’s use of the Services.

Effective February 12, 2009

1. LINKS AND CONTENT We, or third parties, may produce automated search results or otherwise provide links to other World Wide Web sites or resources. We may also provide the opportunity for third parties to submit, post, transmit or otherwise make available information, data, text, photographs, sound, graphics, video, messages, reviews or other materials ("Content") though this site. Because we either do not review and/or have no control over such sites, resources, and Content, you acknowledge and agree that we are not responsible for any Content, nor for the availability of such sites, and resources, and that we do not endorse and are not responsible nor liable for any such sites or resources, nor for any Content contained therein, and you understand that all Content is the sole responsibility of the person from whom such Content originated. You further acknowledge and agree that we are not responsible or liable, directly nor indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, site or resource.
2. PROHIBITED USES You agree not to use this site or its Content for any illegal or unauthorized activity.  You agree that you will not use any device, software, or other technology to interfere or attempt to interfere with the proper working of this site. You agree not to use this site or its Content for any commercial purposes.  You agree not to crawl, spider, scrape, or otherwise deploy automated agents or other technology to collect, harvest, mine, or otherwise interact with this site, unless you a) uniquely identify your technology by means of the user-agent field in every request header, b) provide a clear point of contact for the operation of those systems and c) follow standard robots.txt and other standard crawler-management policies.  You agree that we can, at our sole discretion, prohibit such automated activities.
3. DISCLAIMERS OF WARRANTIES YOU UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY LAW:

   (a) SERVICES AND CONTENT ON THIS SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT.

   (b) WE MAKE NO WARRANTY THAT: (i) THE FUNCTIONS OF AND SERVICES PROVIDED IN THIS SITE WILL BE UNINTERRUPTED, SECURE OR ERROR- FREE; (ii) DEFECTS WILL BE CORRECTED; OR (iii) THIS SITE OR THE SERVER THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

   (c) WE MAKE NO WARRANTY REGARDING THE ACCURACY, VERACITY, INTEGRITY OR QUALITY OF THE CONTENT, SITES OR RESOURCES MADE AVAILABLE ON OR FROM THIS SITE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY THAT SUCH CONTENT, SITES OR RESOURCES WILL BE FREE OF MATERIAL THAT IS OFFENSIVE, INDECENT OR OBJECTIONABLE.

   (d) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

4. LIMITATION OF LIABILITY IN NO EVENT WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES FOR ANY USE OF THIS SITE, OR USE OF ANY OTHER LINKED SITE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY IS TO DISCONTINUE USE OF THE SITE.
5. PRIVACY Your privacy is important to us. All information gathered by us from you in connection with your use of this site is subject to the provisions of our Privacy Statement. We do not control, nor are we responsible for, the privacy practices of those sites to which we link and, therefore, you agree to read the privacy policies of those sites.
6. INDEMNITY You agree to indemnify and hold Marchex, Inc. and its affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of: your use of the site; Content you submit, post, transmit or otherwise make available though this site; your violation of these Terms; or your violation of any rights of another.
7. GENERAL INFORMATION These Terms constitute the entire agreement between you and us with respect to the subject matter hereof, and govern your use of this site, superseding any prior agreements between you and us. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party Content or third-party software. These Terms and the relationship between you and us will be governed by the laws of the State of Washington without regard to its conflict of law provisions. The parties agree to submit to the personal and exclusive jurisdiction of the courts located within King County, Washington, for any dispute arising under or relating to the subject matter of these Terms. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found invalid or unenforceable, that provision will be enforced to the maximum extent possible, while the remaining provisions of these Terms will remain in full force and effect.

Effective June 09, 2008.

Our management team has operated in the online search market since 1996, witnessing firsthand the evolution of online advertising. Specifically, over time, advertiser preference to a large degree has evolved from the impression-based or Cost Per Thousand (CPM) advertising model to the performance-based or Pay-Per-Click (PPC) model.  This evolution has been triggered by a demand for increased returns on the dollars spent on advertising.  People and entities advertising online desire users who will buy products and services to click on their ads.  We understand that in the highly competitive world of online advertising, those companies delivering the right blend of quality traffic, at the right prices, will be the most successful.

For those who are new to advertising online, here are some basic elements of PPC advertising:

First and foremost, not all clicks are created equal.  By that, we mean that every click on your advertisements will not convert, or lead to a sale.  There are many reasons that user-generated clicks fail to convert to sales, including the following:  (1) The user who clicks on your advertisement may be gathering information, but may not be ready to buy anything.  (2) The user may find your product pricing or Web site performance lacking in some respect. (3) The user who clicks on your advertisement may do so by accident or may be looking for another product.

The reasons for a non-converting click are varied, and it can be difficult to determine a user’s intent.  It is important for you to understand, however, as per the preceding examples, that when clicks don’t convert into transactions, it is not necessarily a function of low-quality traffic.

Secondly, our advertising service is highly automated.  You sign up for an account with us, you select keywords that are relevant to your products, and you set the prices that you are willing to pay for each click on your advertisement.  These advertisements are then put into our system and delivered across both our network of owned and operated Web sites and the Web sites of entities with whom we have partnered.  This is all accomplished in a highly automated fashion.  We do not deploy a large number of employees to pre-screen each advertiser, each advertisement or paid listing, each Web page where your advertisements appear, or research every click that a user makes on your advertisement.  Our highly-automated system sends out thousands of constantly changing advertisements 24 hours a day, 7 days a week.

Why does this matter to you?  The same technology we deploy that allows you to both create an advertisement and have that advertisement distributed across the Web in an extremely short time period can be vulnerable to activities that compromise traffic quality.  We have established real-time automated monitoring of our traffic base that assists us in reviewing various quality measures, and we are continually working to optimize our monitoring processes.  We also monitor these tools and processes, and watch for low-quality traffic that is not caught by our automated tools. Despite these traffic-quality monitoring efforts, there are those people, who we refer to as ‘bad actors’, who look for ways to circumvent our monitoring and controls.  As you might suspect, these same bad actors look to exploit the controls in a variety of places online, and anyone who tells you that they have foolproof systems to combat them is not telling you the truth.  The truth is that we are constantly working to limit the ability of bad actors to create low-quality clicks.

Lastly, ‘click fraud’ impacts the entire online advertising industry.  This has existed as long as advertising online has existed.  There are two primary methods of generating invalid, fraudulent clicks: manual clicking (by humans) and automated clicking (by software).  A commonly discussed example of manual ‘click fraud’ is when a competitor clicks on advertisements in an effort to drain a marketing budget.  A related example of automated ‘click fraud’ is where a competitor finds a way to create a software program that automatically clicks on the advertisement of a competitor.  Each click under either scenario is clearly a low-quality click.  There are other types of low-quality clicks that are sometimes categorized as "click fraud", such as search engine spiders.  These low-quality clicks may be caused by link-checking software or search engine robots clicking on advertisements as they crawl Web pages and run their routines that are typically designed to improve the speed of search.

How do we combat these types of ‘click fraud’?  We use a variety of methods to identify fraudulent clicks, including looking for patterns in the originating computer, requested ad, browser type, timing, conversion and other factors.  When we find clicks that appear to be fraudulent, we block them.  We have systems and processes in place that allow us to consistently remove fraudulent traffic from our network.  It is important for us to constantly look to improve those systems and processes, particularly as the bad actors evolve their methods of creating low-quality clicks.  Still, you should be aware that these and other forms of ‘click fraud’ exist and that neither we, nor to our knowledge, any of our competitors, offers any guarantee that its traffic is immune from low-quality clicks.

The Bottom Line

Today, we see at least three positive developments around the above-mentioned items.  One, as more people and companies gain experience with online advertising, they gain a better understanding of the relevant issues, including the issue of low-quality clicks.  Two, advertisers have ever-improving and more sophisticated tools at their disposal to determine the overall value of their pay-per-click campaigns, which means that advertisers are going to increasingly pay a price that is fair to them and reflective of the returns on their dollars spent with us.  Three, our company and others in our industry are building better tools to identify and reduce low-quality traffic.

If we do not take actions to protect you and other advertisers from low-quality clicks, we fundamentally understand that you and others will vote with your checkbooks and choose not to spend money with us.

In our ongoing effort to increase the amount of business that we do with you, we will continue to look for ways to deliver you traffic that converts at or above your target return on advertising spend levels.

Effective June 7, 2006

Google’s advertiser guide to working with a third-party partner.