Marchex Connect NA Inc. SEO Program Terms and Conditions
This Search Engine Optimization ("SEO") Program Terms and Conditions Agreement shall constitute a legally binding and enforceable agreement between you (hereinafter, "Client") and Marchex Connect NA, Inc. (hereinafter, "Company"), a Delaware corporation and a wholly-owned subsidiary of Marchex, Inc., a Delaware corporation. As a client of Company's SEO Program (as set forth on the applicable Work Order), Client agrees to be bound by the terms set forth in these Terms and Conditions and the terms set forth on any corresponding Work Order (collectively, the "Agreement"). Notwithstanding the foregoing, in the event any provision of any corresponding Work Order expressly conflicts with any provision of this Agreement, the specific provision of the Work Order shall prevail to the extent there is an express conflict. 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 promptly 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 these Terms and Conditions, the payment terms and conditions set forth in the Work Order shall apply. Client agrees that any pre-paid amounts for services provided by Company are nonrefundable. 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. Client will be subject to a late payment charge equal to the lower of one and one-half percent (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.
CLIENT REPRESENTATIONS AND WARRANTIES: Client represents and warrants to Company that for the term of this Agreement that:
- this Agreement constitutes a valid and binding agreement enforceable against Client in accordance with its terms.
- any information it has provided or will provide in connection with this Agreement and any corresponding Work Order is and will be both accurate and complete.
- Client is the authorized owner or representative of the Web site(s) for which the SEO Program is requested.
- Client has the necessary rights and/or licenses to permit Company to perform the SEO Program in connection with Client's Web site(s), including its content, marks, names and other materials therein.
CLIENT INDEMNIFICATION OBLIGATIONS: Client agrees to indemnify, defend and hold harmless Company, its parent company Marchex, Inc. and affiliated companies, its vendors, 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 Client's Web site(s) or contents therein, or associated therewith, or Client's breach of any term, condition, agreement, representation or warranty hereunder., Company will notify Client of any claim, action or demand for which indemnity is required in the reasonable opinion of Company 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 SEO PROGRAM, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, 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 SEO PROGRAM OR OPERATION THEREOF WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET CLIENT'S REQUIREMENTS. 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, IF COMPANY'S SEO PROGRAM BECOMES INOPERABLE OR INCAPABLE OF PERFORMING AS INTENDED. COMPANY WILL NOT 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, EVEN IF AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY'S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT TO COMPANY FOR THE SEO PROGRAM.
CONFIDENTIALITY: During the term of this Agreement, and for a period of three (3) 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 the Company SEO Program pursuant to which such Confidential Information is disclosed or (b) as provided herein. "Confidential Information" includes (a) the terms of any Work Orders, (b) any information disclosed to Client by Company, (c) results or data relating to the SEO Program or any service provided by Company and the related performance of such Company service and (d) 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: 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.
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., c/o Marchex, Inc., Attn: General Counsel, 413 Pine Street, Suite 500, Seattle, WA 98101; (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.
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. This Agreement and any applicable Work Orders constitute the entire agreement between the parties relating to the participation in Company's SEO Program. 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 with respect to the same subject matter, 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 the SEO Program following such changes shall be deemed to be continued acceptance of this Agreement including its amendments and modifications.
Effective July 29, 2008