Marchex Connect NA Inc. Professional Services Terms and Conditions
This Professional Services Agreement (hereinafter, the "Agreement") shall constitute a legally binding and enforceable agreement between you (hereinafter, "Client") and Marchex Connect NA, Inc. (hereinafter referred to as "Company"), a Delaware corporation and a wholly-owned subsidiary of Marchex, Inc., a Delaware corporation. As a client of Company's Professional Services (as set forth on the applicable Work Order), Client agrees to be bound by the terms set forth in this Agreement and the terms set forth on any corresponding Work Order. This Agreement shall be deemed incorporated by reference into any Work Order with respect to such Client; provided that if any provision of any corresponding Work Order conflicts with any provision of the Agreement, the provision of the corresponding Work Order shall prevail. These Terms and Conditions and the corresponding Work Order shall be referred to collectively herein as the "Agreement". This Agreement may be supplemented, amended or otherwise changed by the terms of any subsequent Work Order that expressly provides for such change in terms.
PAYMENT BY INVOICE: Client agrees to pay Company all applicable service fees to its account in United States dollars, in accordance with the payment terms and conditions set forth herein. In the event that any of the payment terms of a Work Order are different than the terms set forth in this Section, the payment terms and conditions set forth in the Work Order shall apply. Client agrees that any Initial Set Up fee, initial deposit or service fee (depending on the Company Professional Service selected by Client) are nonrefundable. Client represents that any information it has provided or will provide in connection with any Company Professional Service is and will be both accurate and complete.
Client will be subject to a late payment charge equal to the lower of 1.5% per month accruing from the invoice date or the maximum amount allowed by applicable law.
Termination of the Agreement and/or payment of late fees shall not prejudice any other rights or remedies that may be available to Company with respect to nonpayment or late payment of applicable fees.
PAYMENT DISPUTES: Client agrees to notify Company within five (5) days after the end of the month of any discrepancies in Client's account. In the event that Client does not notify Company within such five (5) day period after the end of the month, such claims or disputes will be waived and any charges will be final and not subject to dispute. Client further agrees that it will be responsible for all reasonable collection expenses (including attorneys' fees) incurred by Company to collect any payments owed by Client to Company.
BID MANAGEMENT SERVICES: In the event that Client has engaged Company to perform Bid Management Services the following provision shall apply. Client acknowledges that Company shall serve as an agent for Client in purchasing media and other services on its behalf, and Company shall only be responsible for the payment of any related invoices to the extent it has been timely paid by Client for such related amounts. Prior to full and timely payment by Client to Company, Client shall be solely liable for amounts invoiced in connection with such media purchases on Client's behalf. Client agrees that Company may provide a copy of this Agreement or other confirmation with respect to the agency relationship, as determined by Company, if so requested by related vendors. With respect to such Professional Services, the parties acknowledge that Company is subject to the tracking data and calculations of the applicable vendors. Based on this information and invoicing, Company will make payment on behalf of Client, as its purchasing agent, to the extent Company has been paid by Client. Client understands and agrees that such measurements will be the only and definitive measure of the amounts payable by Client for these Professional Services. Client shall be liable for all penalty and other amounts that may be due to any vendor as a result of Client's failure to timely pay amounts due by Client. Client authorizes Company to accept any applicable terms and conditions, on behalf of Client, related to purchases made on behalf of Client by Company. Client shall assume the obligations of any such terms and conditions accepted in connection with any purchases made on behalf of Client by Company.
CLIENT REPRESENTATIONS AND WARRANTIES: Client represents and warrants to Company that this Agreement constitutes a valid and binding agreement enforceable against Client in accordance with its terms. Client further represents and warrants that Client is the authorized owner or representative of the Web site(s) for which the Professional Services are requested and that such site(s) is not involved in any illegal activity and/or hate activity (whether racial or otherwise) and does not contain any libelous matter. Client represents that it has the necessary rights and/or licenses to permit Company to perform the Professional Services in connection with the content, marks, names and other materials on Client's site(s), including, without limitation, the use of keywords for purposes of the feed creation or the use of marks in connection with any co-branding services. Client will not hold Company or its affiliates or distribution partners liable or responsible for the activities of visitors who come to Client's site(s) through a link provided from the Company Network. Client further represents that Client's site(s) does not contain, link to or promote any of the following: violence; hate crimes; illegal activities; discrimination based on race, sex, religion, nationality, disability, sexual orientation, age; or violate or infringe upon the rights of any third party, including intellectual property rights.
Clients that sell or promote age restricted products and services, such as alcohol or tobacco products, or adults only materials, or wagering/gaming products and services, represent that they have age verification on the home page and in the sales process in compliance with all applicable laws and regulations, and such Clients do not offer such products and services in jurisdictions in which such are prohibited or in any way restricted.
CLIENT INDEMNIFICATION OBLIGATIONS: Client agrees to indemnify, defend and hold harmless Company, its parent company Marchex, Inc. and affiliated companies, its vendors, its distribution partners, and any of their officers, directors, employees, representatives and agents, from and against all claims, actions, liabilities, losses, expenses, damages and costs (including without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings 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 the Advertisement, Client's Web site(s) or contents therein (including, without limitation, any content or keywords resulting from such Web site(s)), or Client's breach of any term, condition, agreement, representation or warranty hereunder or under any vendor terms and conditions related to the Bid Management Services provided on behalf of Client, including, without limitation, claims for infringement of copyright or other intellectual property rights and violation of rights of privacy and publicity. Company will notify Client promptly of any claim, action or demand for which indemnity is claimed and will cooperate reasonably with Client at Client's expense. Client may not settle any lawsuit without the prior written consent of Company. Company will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense.
LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER: COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE COMPANY PROFESSIONAL SERVICES, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY DOES NOT WARRANT OR GUARANTEE THAT THE COMPANY PROFESSIONAL SERVICE OR OPERATION THEREOF WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET CLIENT'S REQUIREMENTS, AND COMPANY SHALL NOT BE LIABLE FOR THE CONTENT OF ANY WEB SITES ON THE COMPANY NETWORK. COMPANY WILL NOT BE LIABLE FOR, OR CONSIDERED TO BE IN BREACH OF OR IN DEFAULT, ON ACCOUNT OF ANY DELAY OR FAILURE TO PERFORM AS ANTICIPATED BY THE PARTIES, INCLUDING, WITHOUT LIMITATION, A DELAY IN CHANGING A PRICE PER CLICK BY CLIENT, OR IF ANY OF COMPANY'S PROFESSIONAL SERVICES BECOME INOPERABLE OR INCAPABLE OF PERFORMING AS INTENDED. NEITHER PARTY WILL HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, THE REJECTION OR REMOVAL OF ANY ADVERTISEMENT, OR ANY DELAY IN DISPLAYING OR THE FAILURE TO DISPLAY AN ADVERTISEMENT, EVEN IF AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY'S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT TO COMPANY FOR THE ADVERTISEMENT WHICH IS THE BASIS OF LIABILITY OR THE AMOUNT PAID BY CLIENT TO COMPANY IN THE LAST SIX (6) MONTHS, WHICHEVER IS LESS.
USE OF SUBMISSIONS: Client irrevocably grants Company, its partners, licensees and any entities in the Company Network, the right to use all parts of the Advertisement and any keywords or content from Client's Web site(s) used for purposes of the Professional Services, without limitation, including modifying it or using it commercially and authorizing others to do so. Client further irrevocably grants Company the right to deliver the Advertisement to any authorized distribution partner that Company deems relevant to the Advertisement.
MODIFICATION OF SERVICE: Company reserves the right to redesign or modify the organization, structure or "look and feel" of the Company Professional Services at any time without notice.
RIGHT TO REJECT: In its sole discretion, Company may reject, cancel or remove all requested URL links, search terms, descriptions, banners and logos for use in connection with the Professional Services, at any time and with or without notice.
CONFIDENTIALITY: During the term of this Agreement, and for a period of two years following the termination of this Agreement, neither party will use or disclose any Confidential Information of the other party, except (a) as may be necessary for the provision or maintenance of a Company Professional Service pursuant to which such Confidential Information is disclosed or (b) as provided herein. "Confidential Information" includes (a) Advertisements, prior to publication, (b) the terms of any Work Orders, (c) any information disclosed to Client by Company, (d) results or data relating to any Company Professional Service or any service provided by Company and the related performance of such Company Professional Service and (e) any proprietary information shared pursuant to this Agreement, including technology, process and know-how. The foregoing restriction does not apply to information that has become publicly known through no breach by a party, or has been: (a) independently developed without access to the other party's Confidential Information; (b) rightfully received from a third party; (c) approved in writing for release by the disclosing party; or (d) required to be disclosed by law or by a governmental authority.
TERMINATION: Unless otherwise set forth on the Work Order, this Agreement shall automatically renew for periods equal to the term set forth on the Work Order, unless either party provides the other party with thirty (30) days notice prior to the commencement of the renewal term. In the event either party has materially breached any of the terms and conditions of this Agreement and has failed to cure such breach within ten (10) days of its receipt of written notice describing such breach, the other party may terminate this Agreement by providing fifteen (15) days written notice. Company may, in its sole discretion, terminate this Agreement at any time and for any reason. Following such notice period, Client will be billed for any amounts still owed to Company. Any amounts for services provided under any Company Professional Service, including all Account Activation, initial setup or promotion fees are non-refundable.
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 Marchex Connect NA, Inc., 2896 Crescent Ave., Suite 101, Eugene, OR 97408; (ii) if to Client, addressed to Client at the address shown on the corresponding Work Order; or (iii) addressed to the other party at such other address for which such party gives notice hereunder.
PRESS RELEASES: Client may not issue any press release or make any public announcement(s) relating to this Agreement or the relationship established by this Agreement without the express prior written consent of Company, however, Company may make informational references to its products and services and Client's participation therein in press releases without obtaining Client's consent.
MISCELLANEOUS: If any provision in this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and without being impaired or invalidated in any way. Client agrees to work with Company to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Client shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of Company. Subject to the foregoing, this Agreement shall bind and inure to the benefit of both parties and their respective heirs, executors, administrators, successors and assigns. Company may assign and transfer this Agreement in whole or in part and may delegate its duties or assign its rights hereunder at any time. This Agreement and any applicable Work Orders constitute the entire agreement between the parties relating to the participation in Company's Professional Services. This Agreement shall be governed by and construed according with the laws of the State of Washington. Client hereby irrevocably consents 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. This Agreement supersedes all prior and/or contemporaneous Agreements and Client agrees it has relied upon no representations, oral or otherwise, not contained within this Agreement. Company reserves the right to change the terms to this Agreement by posting such changes. Client's continued participation in any Company Professional Services following such changes shall be deemed an assent to such changes.
Effective July 29, 2008