Legal
Marchex Voice Services, Inc. Voice Services Terms and Conditions
These Voice Services 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 Voice Services, Inc., ("Marchex" or "MVS"). 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 Customer shall be responsible for obtaining and maintaining any computer and phone equipment (and the like) and ancillary products (collectively, "Equipment") needed to use the enhanced information and data services provided under this Agreement (collectively, the "Services"). Customer shall also be responsible for maintaining the security of its Equipment, Customer account, passwords and files, and for all uses of Customer account or its Equipment.
1.2 Customer 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.
1.3 During the Service Term, Customer may use the telephone numbers that are assigned to it by MVS (the "MVS Numbers") for its own advertising purposes, or it may re-assign such numbers for use by any Customer advertiser in advertisements placed in Customer's websites or publications (print, electronic, or otherwise) in accordance with the terms set forth herein. All MVS Numbers remain the property of MVS 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 MVS Numbers and Services shall cease absolutely and Customer shall not thereafter publish, advertise, promote, distribute or sell any item whatsoever bearing any MVS Number.
1.4 If Customer is a publisher or agency that intends to offer use of the MVS Numbers or Services to its advertiser customers, Customer shall have in place with each of its advertisers or users to whom Customer makes the Services available ("Clients"), contractual terms or legal equivalent ("Client Terms") that shall: (i) contain standard disclaimers of warranties on behalf of suppliers and vendors of Customer; (ii) contain appropriate limitations of liability of suppliers and vendors of Customer; (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 suppliers and vendors of Customer as indemnitees; and (v) designate suppliers and vendors of Customer as third party beneficiaries of such provisions with a right to enforce such provisions against such Client. Furthermore, Customer shall be responsible for all marketing materials, advertising and informational content, and any oral or written representation that Customer makes to any current or potential Clients; and Customer shall neither make nor include in the Client Terms any representations or warranties on behalf of MVS or with respect to MVS, its affiliates or the Services.
1.5 Customer hereby agrees to indemnify and hold harmless MVS against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys' fees) related to any third party claim arising from or in connection with an alleged violation of the terms of this Agreement by Customer or otherwise from Customer's (or its customers') use of Services. Although MVS has no obligation to monitor the content provided by Customer or Customer's use of the Services, MVS 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 foregoing.
1.6 Recording of calls under the Services is part of an optional product feature. Customer may elect not to use such product feature in connection with the Services. To the extent that Customer elects to use such product feature the Recorded Call Services Terms and Conditions shall apply to Customer, and are fully incorporated herein by reference: http://www.marchex.com/legal/marchex-voice-services-recorded-call-terms.html.
2. 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 "Proprietary Information" of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary 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 Proprietary Information of the Disclosing Party or (e) is otherwise required to be disclosed by court order, law, regulation or securities exchange requirement. Customer's archived data generated in connection with the contents and recordings of any calls, hereunder, shall be deemed Proprietary Information of Customer. Notwithstanding the foregoing, MVS may collect data with respect to the Services and report on the aggregate response rate and other aggregate measures of the Services' performance without identifying Customer as the source thereof and without disclosing any personally identifiable information. Each party shall retain all right, title and interest in and to its Proprietary Information, including all intellectual property rights inherent therein or appurtenant thereto.
3. PAYMENT OF FEES
3.1 Customer will pay MVS the then applicable fees for the Services as set forth in the Order Form and the relevant Attachments (the "Fees"). MVS reserves the right to require a cash deposit as security payment for the Platform Services Fees. Furthermore, MVS 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.
3.2 Customer will make payment no later than thirty days after the end of the applicable month, or the Services may be terminated immediately by MVS. 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 taxes associated with Services other than taxes based on MVS's net income.
4. TERMINATION
4.1 Subject to earlier termination as provided below, this Agreement is for the initial Service Term as specified 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, 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 MVS, or there is a material adverse change in the credit profile of Customer during the Service Term, MVS may elect to terminate or suspend performance immediately and require pre-payment for the Services hereunder or other commensurate payment terms.
4.3 Upon any termination, MVS will maintain Customer's archived data for at least thirty (30) days following termination, and, upon request, will deliver such archived data to Customer in a mutually agreed upon format (at Customer's expense). Subject to the foregoing, upon termination hereof, each party shall return to the other party or destroy, and certify in writing as to such destruction, the other party's Proprietary 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. WARRANTY AND DISCLAIMER
MVS represents and warrants that the Services do not infringe upon or violate any law, regulation or third party right, including, without limitation, any patent, trademark, trade secret or copyright or right of privacy or publicity, except that MVS makes no representation with respect to Customer's use of the Recorded Call Message functionality or any call recording. MVS 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 PROMOTIONS, 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. EXCEPT AS EXPRESSLY PROVIDED HEREIN THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND MVS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
6. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO A PARTY'S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER MVS 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 MVS FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
7. GOVERNMENT MATTERS
Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto in violation of any applicable restrictions, laws or regulations. MVS is not a telephone company. MVS purchases telecommunications services and uses such services to provide enhanced service products to Customer. If at any time MVS's right to allocate MVS Numbers or otherwise provide the Services to Customer is impaired or regulated by any governmental or quasi-governmental entity, including, without limitation, the Federal Trade Commission, the Federal Communications Commission or any state public utility commission, MVS shall have the right to terminate this Agreement automatically upon written notice and to cause Customer to remove or withdraw any advertising material containing any MVS Number. MVS shall have no liability or obligation to Customer of any kind arising out of such a termination.
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 MVS.
This Agreement is 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. 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 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 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. MVS 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 September 15, 2008