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
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