TERMS AND CONDITIONS
1. General. These Terms and Conditions (collectively, the “Terms and Conditions”) are the only terms which govern the services (“Services”) as set forth in the order (the “Order”) provided by Albany Times Union, a division of Hearst Communications, Inc. (“Company”) to you (“Customer”). These Terms and Conditions and the Order (including any exhibits, appendices or schedules attached hereto or thereto, collectively, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of a conflict between these Terms and Conditions and the Order, these Terms and Conditions shall prevail unless expressly provided otherwise herein. These Terms and Conditions may be modified upon notice to Customer.
2. ADVERTISING ACCEPTANCE/AGREEMENTS/RATES/COPY REGULATIONS
2.1. All advertising is accepted subject to Company’s approval. The Company shall at all times have the right without liability to reject, in whole or in part, any advertisement scheduled to appear on the internet or in the newspaper for any reason in Company’s sole discretion, even if such advertisement has previously been acknowledged or accepted.
2.2. All advertising spending during the agreement period contributes towards Dollar Volume Contract fulfillment. Columns, inches or Classified lines purchased during the agreement period contribute to Space Agreements. Contributions to Frequency Agreements are based upon qualifying insertion orders during the agreement period. Fulfillment will be cumulative from the start of the Order. Limitations and restrictions may apply to some advertising categories and separate space or line orders may be required.
2.3. General advertising rates are commissionable at 15% only to Advertising Agencies recognized by the Company. Cash discounts are not available. Retail rates are net and non-commissionable and are not available to advertising agencies. No cash discounts are offered. All General advertising is commissionable. All Retail advertising is non-commissionable. General classified advertising in connection with automotive and recruitment is commissionable. All other Classified advertising is non-commissionable.
2.4. If an Advertiser does not fulfill the annual commitment in the specified time period, the Company reserves the right to adjust all advertising placed during the Term to the actual rate earned.
2.5. It is a condition of this Order that Company reserves the right to revise (upward or downward) its advertising rates at any time. The revised rates will become effective on the announcement date for all Advertisers (“Effective Date”) except for Advertisers who qualify for a guaranteed rate for the duration of a previously existing contract.
2.5.1. If Company revises rates, then Advertisers are allowed to continue the Order at the new rates or to cancel the existing Agreement without penalty before the Effective Date of the new rates, provided that advertising performance level at the time of cancellation, in Company’s sole judgment, is consistent with fulfilling the original Order at the earned rate, if applicable.
2.5.2. If Advertisers elect to take advantage of newly established rates or revise the existing Order performance level to a level with a more favorable rate, then upon proper written approval, the Advertisers affected may be allowed to terminate the existing Order without penalty, if Company determines that the advertising performance level at the time of cancellation is consistent with fulfilling the original Order. A new Order will be signed at the new Order level rate, superseding the prior Order.
2.5.3. If an Advertiser decides to cancel the existing Order to take advantage of a new lower rate and has not performed at a level that, in Company’s sole judgment, would be sufficient to fulfill the existing Order, then the Advertiser will be billed the difference between the Order rate and the rate earned prior to cancellation in accordance with the rate schedule applicable prior to the revision.
2.6. Words such as “advertisement” will be placed with a minimum point size of 14 at the top of copy that, in Company’s opinion, resembles editorial matter.
2.7. Advertising policies, terms, conditions and general information in the Rate Card Standard Terms and Conditions are subject to change at any time by Company. Company will not be bound by any condition appearing on order blanks or copy instructions submitted by or on behalf of the advertiser when such condition conflicts with any provision contained in its rate card or with its terms and conditions. Terms in advertising orders that do not conform to the rates or terms and conditions on the existing rate card(s) will be regarded as clerical errors. Copy accompanying such orders will be inserted for publication and charged at the applicable effective rate.
2.8. Company shall not be responsible for orders, cancellations, corrections or copy given over the telephone. Written confirmation of any of the above must be received within sufficient time (as may be determined by Company) to allow Company implementation or the advertising will be billed as originally ordered at corresponding rates.
2.9. The Customer and/or Company shall designate the width in columns and the exact depth in inches to the nearest half inch or Classified line. Company will bill the advertisement in exact space ordered.
2.9.1. The printed image size of ads may vary from the mechanical measurements as a result of production parameters and processing shrinkage.
2.9.2. All display advertisements are billed from cut off rule to cut off rule. For in column ads, there is a charge for one cut off rule per liner ad.
2.9.3. Standard size advertisements over 19.5 inches in depth and tabloid size advertisements over 11 inches in depth will be charged full column depth of 21.5 inches and 11.5 inches respectively.
2.10. Display advertisements will be positioned from the bottom of the page. No guarantee is made regarding positioning. Orders specifying positions are accepted only on a request basis, subject to the right of the Company to determine actual positions in its sole discretion. In no event will adjustments, reruns or refunds be made because of the position in which an advertisement has been published.
2.11. No guarantee is made regarding positioning. Orders specifying positions are accepted only on a request basis, subject to the right of the Company to determine actual positions in its sole discretion. In no event will adjustments, reruns or refunds be made because of the position in which an advertisement has been published.
2.12. Advertiser is responsible for checking advertising copy for corrections and providing the Company with prompt written notice of errors or changes within the Company’s deadlines.
2.13. Clippings, checking copies or tear sheets must be ordered at the time the ad is placed and fees will be charged for these services.
2.14. All advertising copy must be accompanied by a layout and correctly marked for processing by Company’s composing room. If any changes are required by the Company to conform advertising copy to Company requirements, the time required to make these changes will be billed to the Advertiser at hourly rates currently in effect by the Company.
2.15. Reasonable commercial effort will be made to return artwork and layouts furnished by Advertisers upon reasonable request, but the Company shall not be held responsible in case of loss or damage.
2.16. All advertising set and not published within 30 days will be billed and charged production charges at the Company’s current rates plus any additional costs incurred by the Company. Production charges are based upon the Company’s current production schedules that are available upon request. Claims for adjustment of production charges must be made within 30 days of publication.
3. AFFILIATE MARKETING
3.1. In the event that Advertiser has elected to participate in an affiliate marketing program as further described on the Order, Advertiser agrees to pay Company the bounty (the “Bounty”) set forth on the Order as compensation for Advertiser realizing a certain amount of merchandise sales actually received by the Advertiser (a “Sales Goal”), calculated by gross merchandise value and deducted by applicable sales tax, shipping costs, product returns and fraudulent customer activity (the “Deductions”, and collectively, the “GMV”), through the Skimlinks affiliate links embedded within Company’s online content and as reported to Company through its Skimlinks publisher hub and per monthly Deductions reports provided by Advertiser. Advertiser agrees to be bound by the terms of Advertiser’s existing agreements with affiliate program providers, including but not limited to Impact Radius and Skimlinks. Company will provide an invoice to Advertiser at the end of the period set forth on the Order, which will be due thirty (30) days from the invoice date. The invoice will set forth an amount corresponding to the Sales Goal achieved by Company during the specified time period to be paid by Advertiser to Company. Such invoiced dollar amount will be the Bounty that corresponds to the SalesGoal set forth on the Order.
4. CREDIT AND BILLING POLICY
4.1. All rates are net, cash with order, unless credit has been approved in writing by Company credit department. Company may at any time and at its sole discretion (i) require cash with order in the form of cash, cashier’s check or certified funds, (ii) require immediate payment in full of any outstanding balances, (iii) refuse to accept advertising until all past due payments are made, (iv) refuse to publish advertising, or (v) require all or any of the above.
4.2. All payments are to be made to [PAYMENT INFORMATION]. All advertising placed by Advertisers outside the United States must be prepaid in U.S. funds drawn on a U.S. bank.
4.3. Acceptance and publication of advertising does not constitute an extension of credit to the Customer. Company through its [NEWSPAPER] Credit Department (the “Credit Department”) may, at its sole option, extend credit upon completion of an application for credit and/or personal guarantee, along with any other additional information, surety, and credit reference deemed necessary by the Company.
4.4. Alternatively, if Customer does not wish to submit a credit application or if Customer is denied credit by the Credit Department, Customer will be required to at all times be in a prepayment status on the account, i.e. have a credit balance equal to or exceeding one month of billing on the Customer’s account. If the Customer does not maintain this minimum credit balance, Customer will have three (3) calendar weeks to restore the credit balance or digital service(s) will be shut down.
4.5. Where credit is extended, monthly bills are due upon receipt and should be paid no later than twenty (20) days following presentation (billing date), and weekly bills are due upon receipt and should be paid no later than seven (7) days following presentation (billing date). Continuation of credit privileges and terms is dependent upon full and prompt payment.
4.6. Any invoice submitted to the Customer shall be deemed conclusive as to the correctness of the items contained therein, and shall constitute an account stated unless Customer or its agent makes a written objection delivered to the Advertising Manager or Credit Manager within 30 days of such invoice. IF THERE ARE ANY DISPUTES OR DISCREPANCIES, ADVERTISER MUST PROMPTLY PAY ALL AMOUNTS NOT SUBJECT TO DISPUTE, and present to the Advertising Manager and Credit Manager, in writing, a complete and detailed explanation of any payment withheld and reasons therefore. Customer agrees to cooperate with the Company in the prompt resolution of disputes. Failure to receive tear sheets or checking copies is NOT recognized as a valid reason to withhold payment or a material breach of the Order.
4.7. Advertising Agencies that sign Agreements or receive invoices on behalf of Retail and Classified Advertisers are acting as the agent of these Advertisers. Local rate Advertisers Customer are at all times liable for payment of all account balances due and all other liabilities, unless Company and Advertising Agency agree in writing that Advertising Agency accepts the obligation to pay local rate Advertiser’s liabilities. Local rate Advertisers are deemed to receive refund payments, adjustments, notices and all other documents when the same are delivered to their agents. Any language in any Advertising Agency’s insertion order or other documents to the contrary is void and without effect.
4.8. Notwithstanding to whom bills are rendered, general rate Advertiser and Advertising Agency, jointly and severally, shall remain obligated to pay to the Company the amount of any bills rendered by the Company within the time specified and until payment in full is received by the Company. Payment by Advertiser to Advertising Agency or any third party shall not constitute payment to the Company.
4.9. Advertising submitted with insertion orders or other forms, which deny liability for payment, will not be accepted unless the submitting Advertising Agency satisfies at least one of the following conditions:
4.10. Signs a “Confirmation of Liability for Payment” form, which supersedes the denial of liability for payment in any and all insertion orders received from that agency; or,
4.11. Prepays for the advertising submitted with such a denial of liability.
4.12. Advertising Agencies submitting agreements or orders limiting their sequential liability will be required to submit a Letter of Guaranteed Payment by their Advertiser client.
5. Provision of Digital Marketing Services. Company may provide certain digital marketing services to Customer, including the services listed on Appendix 1 hereto (the “Digital Marketing Services”). The Digital Marketing Services may include the development of certain digital marketing content (“Digital Marketing Content”) including (i) digital advertising whereby Company may place Digital Marketing Content on a portal on the Internet (the “Portal”) or through a network of associated internet portals, social networks and search engines (each, a “Partner Property”) (ii) a website or a landing page hosted or developed by Company for Customer (a “Customer Website”) or other digital advertising services, potentially fulfilled by one or more vendors (a “Vendor”). For the avoidance of doubt, Customer remains fully responsible for any and all Consents (defined below) on such Customer Websites as a result of the data uses and collections in connection with the Digital Marketing Services.
6. Policies. Provision and use of the Digital Marketing Services is subject to all applicable Company and Partner Property policies, as applicable, including the Company Privacy Policy available at the Company’s website. Company may modify or change its policies at any time. Company may modify the Digital Marketing Services and any Digital Marketing Content to comply with any Company, Portal, or Partner Property policies, as applicable. Company is not responsible for any policies applicable to Customer Websites, and Customer remains solely responsible for hosting and maintaining its own policies applicable to the operation of its business in compliance with Applicable Laws, including a valid and accurate privacy policy, if required, that is consistent with all data uses on the Customer Websites (including in connection with any Services provided by Company).
7. Domain Names. Company may, in connection with an Order, purchase or otherwise acquire one or more URLs for its use in providing the Digital Marketing Services (the “Domain Names”). Such Domain Names may include references to Customer and its business, including trademarks owned by the Customer. Customer hereby grants Company a royalty-free, non-exclusive, non-revocable, transferrable worldwide license for the use of any such trademarks in such Domain Names and Customer acknowledges that Company will own all right, title and interest in such Domain Names during the term of and after the expiration or termination of this Agreement and that Customer has and will not make any claim to such Domain Name.
8. TERMINATION/CANCELLATION
8.1. Orders can be canceled by either party upon giving thirty (30) days written notification. Cancellation does not relieve parties of liability for any existing obligations for advertising publicized pursuant to the applicable rate card. If the Order is terminated by the Company for reasons other than non- payment and the cancellation does not permit the Advertiser an opportunity to fulfill the Order performance requirements, the amount due and payable will be the amount billed or the space actually used at rates consistent with fulfilling the Order.
8.2. Orders are subject to immediate cancellation if bills are not paid by the due date and in cases where it is determined the Advertiser does not qualify for the Order rate. If cancellation is for non-payment of bills at due date, the entire amount receivable shall become due and payable and any existing agreement terminated at the option and discretion of the Company without notice.
8.3. The Company shall have the right to cancel an order at any time. In the event of termination, the Advertiser or its agent shall pay for the space actually used at the rate earned in accordance with the current rate structure.
9. Termination; Suspension. Following the expiration of the Initial Term, the Customer may terminate any Services or this Agreement at any time upon thirty (30) days written notice. Company may terminate any Services or this Agreement at any time upon five (5) days written notice to Customer. In the event Customer fails to meet the payment terms contained in these Terms and Conditions or any Order, Company reserves the right to suspend fulfillment of products or services to be provided. In such cases, a suspension fee, as determined by Company, of an amount equal to the balance of third-party vendor fees required to fulfill the entire order may be applied to the Customer’s account. Customer acknowledges acceptance of responsibility for payment of such suspension fee in addition to all other monies owed. Upon any such termination, Customer shall not be entitled to a refund of any amount previously paid to Company. Company shall further have the right to terminate the Terms and Conditions at any time should any payments due hereunder by Customer remain outstanding and unpaid for longer than 60 days. In such case, in consideration of the upfront costs incurred by Company to implement the Services on Customer’s behalf, Company shall have the right to seek payment from Customer of what Customer would have owed should such Services have continued for the duration of the Term and Customer shall promptly pay any such amounts sought by Company.
10. Customer Obligations.
10.1. Compliance with Laws. In connection with the performance, access and use of the Services under the Agreement, Customer agrees to comply with all applicable international, federal, state and local laws, rules and regulations, regulatory authority or quasi-governmental agency, including CCPA, GDPR and other privacy, confidentiality and/or information security laws, and applicable accessibility laws (including without limitation the Americans with Disabilities Act) (collectively, “Applicable Laws”).
10.2. Passwords. The Customer shall protect their passwords and take full responsibility for its own, and third party, use of its accounts.
10.3. Customer Content. Company may require that Customer submit certain information, text, audio, video, domain names, logos, pictures, slogans, text, graphics or other content (“Customer Content”) for Company’s use and re-publication in connection with providing or appearing in connection with the Services. Customer grants Company a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Customer Content in any and all media or distribution methods (now known or later developed). Company may modify or adapt Customer Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to Customer Content as are necessary to conform and adapt Customer Content to any requirements or limitations of any networks, devices, services or media. Company may also modify or adapt Customer Content for editorial purposes. Company reserves the right at all times (but will not have an obligation) to remove or refuse to distribute any Customer Content on the Portal or Partner Property for any reason. Company reserves the right to access, read, preserve, and disclose any information as Company reasonably believes is necessary to (i) satisfy any Applicable Law, legal process or governmental request, (ii) enforce the Terms and Conditions, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Company, its users and the public.
10.4. Approvals. Failure by the Customer to provide such Customer Content may prevent Company from providing the Services and in such event Company, in its sole discretion, may make certain assumptions to fulfill Advertising Order, including selecting content in place of Customer Content. For Services which, as set forth in the Order, require Customer review, approval, or other action, Company shall request such review, approval, or other action, and if Company receives no response within two (2) weeks of such request, Customer shall be deemed to have accepted the Services as provided by Company. For such Services that require review, approval, or other action, Company may move forward with live activation of such products or services following Customer’s review, approval, or other action (or deemed acceptance as set forth above) and any subsequent requests for modification by Customer will be implemented once the products or services have “gone live.” Company shall in no way be responsible for any actual or perceived deficiencies in the Services resulting from Customer’s lack of response to Company’s request for review, approval, or other action.
10.5. Consents. Customer is responsible for all permissions, consents, opt-ins, opt-outs, or other acknowledgments or communications to consumers (each, a “Consent”) required by Applicable Laws. Company is not responsible for obtaining any such Consents from Customer’s consumers.
11. Amendments. Any Print Advertisement may only be amended by Customer if written notice of such amendment is received by Company prior to the Sales Close Date. Any Display Advertisement may only be amended by Customer without charge upon giving written notice to Company within 14 days after such Display Advertisement, as applicable, is available for viewing on the Internet.
12. Vendor Terms & Conditions. Additional terms and conditions as required by Company’s Vendors may be applicable depending on the Services provided. By agreeing to these Terms and Conditions, Customer explicitly agrees to and will comply with any applicable Vendor terms and conditions, which shall not be more restrictive than the limitations and restrictions set forth herein (unless otherwise explicitly provided to Customer by Company prior to providing such Services involving that Vendor).
13. Prohibited Uses. The Customer shall not, and shall not authorize any party to: (i) generate automated, fraudulent or otherwise invalid impressions or clicks; (ii) advertise anything illegal or engage in any illegal or fraudulent business practice in any state or country where Advertising is displayed (iii) modify, prepare derivative works of, or reverse engineer, the Services; (iv) knowingly or negligently use the Services in a way that abuses or disrupts Company’s networks, user accounts, or the Services; (v) transmit through the Services any harassing, fraudulent or unlawful material; (vi) market, host, distribute or resell the Services to any third party; (vii) use the Services in violation of Applicable Laws; (viii) harvest, collect, or gather user data without obtaining requisite Consent or other legally permissible basis for processing; or (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties. Customer acknowledges and agrees that the violation of this Section 13 may result in immediate termination by Company (in its sole discretion) of this Agreement or the Customer’s account without notice.
14. Representations and Warranties.
14.1. Customer represents and warrants to Company and to each applicable Vendor, that (a) Customer has the right to use as contemplated by any Order (i) all such Customer Content and content furnished and included in connection with and notated on the applicable Order, (ii) all links from a Customer Website to other websites requested by Customer, and (iii) Customer owns or has rights to all copyrights, trademarks, service marks, trade secrets and other intellectual property rights relating to any Customer Content and (b) all information (including, but not limited to, name, address and telephone number) furnished by Customer in connection with an Order (“Customer Information”) is correct and not misleading in any respect.
14.2. Customer represents and warrants to Company and to each applicable Vendor that it has obtained, and will obtain, all necessary Consents from its customers in connection with the Services it receives from Company hereunder.
15. Indemnification. Customer will indemnify, defend, and hold Company, its Vendors and their respective officers, directors, agents, affiliates, and employees harmless from and against any and all third-party claims, actions, losses, damages, liabilities, costs, and expenses (including but not limited to attorneys’ fees and court costs) (collectively a “Third Party Claim”) arising out of or in connection with (i) the Customer Content and/or any instructions or directions provided by Customer to Company in connection with the Services (including any claims that such Customer Content or the result of Customer direction resulted in infringing a third party’s rights), (ii) Customer’s material breach of this Agreement, and (iii) Customer’s failure to comply with all Applicable Laws in the performance of its business (including failure to obtain all required Consents). Company will notify Customer promptly of any Third Party Claim for which it seeks indemnification and will permit Customer to control the defense of such Third Party Claim with counsel chosen by Customer; provided, that Customer will not enter into any settlement that (a) contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of Company without Company’s prior written consent or (b) in any way materially prejudices Company or its business.
16. Placement. Except as specified in the applicable Order, the page and location on a page or website of any Advertisement, as applicable to such Advertisement, as well as the other contents of any page or website, as applicable containing any Advertisement, may be determined by Company, in its sole discretion. Display Advertising may be placed on (a) any content or property provided by Company, or (b) any other content or property provided by a third-party Partner Property.
17. LIMITATION ON LIABILITY.
17.1. LIMITATION ON INDIRECT LIABILITY. EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY ALL FEES HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, OR (v) COSTS OF RECOVERY, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
17.2. LIMITATION ON AMOUNT OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF COMPANY AND ITS LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DOES NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER ANY ORDER.
17.3. Exclusions. Notwithstanding the limitations set forth in Section 17.2 above, there shall be no limitation on either party’s direct damages liability in connection with this Agreement, to the extent caused by:
17.3.1. Customer’s indemnification obligations under Section 15 or as set forth in Appendix 1;
17.3.2. A party’s fraud, willful misconduct, or gross negligence; and/or
17.3.3. Customer’s breach of Section 13 (Prohibited Uses).
18. Feedback. As between the parties, all right, title and interest in any feedback, suggestions, improvements, modifications or similar provided by Customer to Company related to the Services shall be owned by Company.
19. Rejection. Company reserves the right to reject, whether before or after the date of any Order, any Advertising or Customer Content that, in the sole discretion of Company, is illegal, offensive, obscene or contrary to the business interest, goodwill or reputation of Company or any Vendor or for any other reason in the sole discretion of Company. If any Advertising or Customer Content is rejected by Company pursuant to the preceding sentence, Customer shall not have any recourse against Company or any Vendor for such rejection, except that Company will refund to Customer an equitable portion of any amount previously paid to Company with respect thereto, with such portion to be determined by Company, in its reasonable discretion.
20. Taxes. Any sales, use or other tax imposed by any governmental authority on any amount payable by Customer in connection with an Order or otherwise relating to an Order shall be payable by Customer to Company upon demand.
21. Payments. Unless otherwise stated in the applicable Order, Customer agrees to pay all applicable, undisputed fees for the Services within thirty (30) days of the invoice date. Except as set forth in Section Error! Reference source not found., any and all payments Customer makes to Company for the Services are final and non-refundable. Customer is responsible for providing accurate and current billing, contact and payment information to Company. Company reserves the right to update the price for Services at any time after Customer’s Initial Term commitment for any Order, and price changes will be effective as of Customer’s next billing cycle; provided that Company will notify Customer of any price changes by emailing, quoting or invoicing Customer.
22. Collection Expenses. If Customer fails to pay any amount pursuant to an Order, when due, Customer shall reimburse Company on demand for all costs and expenses incurred by Company in collecting such amount (including, but not limited to, all fees and disbursements of counsel) and/or any collection agency of Company. Customer shall also pay to Company on demand an amount equal to $30.00 for each check that is issued by Customer in connection with an Order and that is returned unpaid for any reason.
23. Postponements and Cancellations. Company may, in its sole discretion, postpone or cancel publication of any medium in which any Advertising is published or any Services. Company shall have no liability to Customer for doing so beyond refunding, or crediting the account of Customer for, any amount specifically paid for any Advertising or Service, as applicable, that is affected by such cancellation.
24. Distribution. Company, in its sole discretion, will schedule a distribution or in-market date for each publication. That date in no way reflects the time required to complete the distribution for that area. Advertising fees related to a directory begin with the commencement of distribution, not the completion thereof. The number of directories initially distributed will be adequate for a general distribution in the coverage area and may include an inventory balance to support additional requirements throughout the year.
25. Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND EACH OF ITS SUPPLIERS AND VENDORS DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN THOSE JURISDICTIONS.
26. Third Party Beneficiaries. “Third-Party Licensors” means third parties that have licensed to Company the right to sublicense and/or distribute certain software, data or third-party tools proprietary to such third parties. Third-Party Licensors shall be beneficiaries of this Agreement as it relates to their respective software, data or third-party tools. Customer shall be responsible for compliance with the terms of any agreements between Company and Third-Party Licensors, which will be no more restrictive than those contained in this Agreement.
27. Disputes. The parties agree that any and all disputes, claims or controversies arising out of or related to this Agreement, including any claims under any statute or regulation (“Disputes”), shall be submitted to mediation and if the matter is not resolved through mediation within forty-five (45) days from such submission, it shall be submitted for binding arbitration upon the demand of either party. Any mediation and/or arbitration shall take place in the State of New York, New York County, and shall be administered by, and pursuant to the rules of, the American Arbitration Association, JAMS or the National Arbitration Forum, upon the election of the party asserting the Dispute. In the event of any inconsistency between this Section and any rule of the arbitration organization, this Section will control. Except as otherwise provided for herein, neither party will have the right to litigate Disputes. DISPUTES SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTES TO BE ARBITRATED ON A CLASS ACTION BASIS OR IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC, OR OTHER ENTITIES SIMILARLY SITUATED. The arbitrator’s authority to resolve Disputes and to make awards is limited to Disputes between the parties of this Agreement alone and is subject to the limitations of liability set forth in this Agreement. Furthermore, Disputes brought by either party against the other may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by all parties. No arbitration award or decision shall be given preclusive effect as to issues or claims in any Dispute with anyone who is not a party to the arbitration. Customer will be responsible for paying its share, if any, of the arbitration fees (including filing, administrative, hearing and/or other fees) provided by the rules of the arbitration organization selected in accordance with this Section, to the extent such fees do not exceed the amount of the filing fees Customer would have incurred if the Dispute had been brought in a state or federal court that would have jurisdiction over the Dispute located in the federal judicial district where the Customer’s headquarters is located. Customer will be responsible for paying the remainder of any arbitration fees for any Dispute initiated by Customer as to which Customer or Company seek arbitration. Customer will not be assessed arbitration fees in excess of Customer’s share if Customer does not prevail in arbitration as indicated in this Section. If Company files a claim in arbitration or Company seeks to compel the other party to bring its Dispute in arbitration, Company will pay all arbitration fees (including filing, administrative, hearing or other similar fees) imposed by the arbitrator or arbitral body, excluding the legal fees and disbursements of the attorneys hired by the other party. The parties agree that the arbitrators’ decision shall be final and binding. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in New York City, New York, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses incurred in obtaining the enforcement of this provision to be paid to the party against whom enforcement is ordered. Either party shall have the right to seek equitable relief (i) in arbitration prior to the arbitration proceedings to enforce the status quo, and (ii) in a New York court to enforce the confidentiality provisions set forth in this Agreement. The mediation/arbitration proceedings and all documentation and/or information related to such processes shall be deemed confidential. This arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended.
28. Survival of Terms. Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement, including all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect.
29. Miscellaneous.
29.1. Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer without the Company’s prior written consent, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including any Order), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that all fees owed and due have been paid and the assignee agrees to be bound by all the terms of this Agreement.
29.2. Controlling Law; Severability. This Agreement and any disputes arising out of or related hereto shall be governed by the laws of the State of New York, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
29.3. Notices. All legal notices hereunder shall be delivered in writing either (a) via email at the email address provided on the Order or (b) by certified mail delivery sent to the mailing address provided on the Order.
29.4. Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, communicable diseases, epidemics or pandemics, Acts of God or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
29.5. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint ventures or partners for any purpose.
29.6. Entire Agreement; Interpretation. This Agreement together with Appendix 1 (and any other exhibits, schedules or appendices attached hereto or any terms linked to or specifically referred to herein) and the applicable Order constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto, and related to the subject matter hereof are expressly canceled. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order between Company and Customer, (2) this Agreement, and (3) the Policies. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. When used in this Agreement, “including” shall be deemed to mean “including without limitation”.
Appendix 1 to the Terms and Conditions
Digital Marketing Services
This Appendix 1 modifies and is incorporated in full into those certain Terms and Conditions between Company and Customer (as those terms are defined therein) to which this Appendix 1 is attached. All capitalized terms used but not defined in this Appendix 1 shall have the meaning in the Terms and Conditions.
1. Search Engine Optimization. Pursuant to an Order, Company may provide certain Digital Marketing Services optimizing certain search engine results for Customer advertisements on the Portal (the “SEO Service”). The SEO Service does not include paid search engine placements offered by certain search engine companies. Customer acknowledges that the SEO Service is aimed towards optimizing the SEO Service Domain Names and the Portal which they direct a user to and that the SEO Service is not intended to optimize any other domain name or website, including Customer’s own domain name or websites. Customer acknowledges that Company will use reasonable efforts to perform the SEO Service but that no guarantee can be made that the Customer Website’s search ranking position will be maintained or optimized. In addition, Customer acknowledges that there are risks associated with search engine optimization methods generally, including some methods that may be employed by Company in performing the SEO Service, which could damage search ranking position and Company will have no liability in such case or for any other unfavorable ranking results whether as a result of the SEO Service or otherwise. Search engine companies change their ranking algorithms periodically, and as such, search ranking positions will fluctuate and cannot be guaranteed by Company. Any other changes to search engine sites that cause unfavorable ranking results are out of Company’s control and Company shall not be held responsible for such actions or occurrences. The search ranking position shall have no effect on the obligation of Customer to pay the full amount for any SEO Service. Company reserves the right to change optimized URL(s) during the life of the service at Company’s sole discretion. Company may make updates, changes or enhancements to Customer Website. Customer acknowledges no updates, changes or enhancements to Customer’s websites by Company, even those that may be deemed by Customer and/or Company to have been made in error, shall affect the obligation of Customer to pay the full amount for the SEO Service. Should Company acknowledge any change was made in error, the only obligation of Company with respect to any such error is to correct such error after notice of such error is received by Company from Customer. Under no circumstances will Company be responsible or liable, financially or otherwise, for any impact of Company initiated changes including errors, other than as stated in the aforementioned sentence.
2. Search Engine Marketing. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of creation and placement of ads on one or more Partner Properties (“SEM”). Customer shall defend, indemnify, and hold harmless Company, its affiliates, employees, directors, officers and agents from any and all claims, liabilities, and/or damages (including, but not limited to reasonable attorneys. fees and costs) that arise from or relate to any advertisements created by Company in its provision of SEM Services. Due to the variable results of SEM, product fulfillment may vary from targeted levels by as much as 50% in any given month of the term of the applicable Order. In order to compensate for this variance or for any other reason, Company may, in its sole discretion, adjust the campaign fulfillment duration of an Order to match delivered fulfillment levels on a monthly basis. Adjustment of campaign duration shall not affect the obligation of Customer to pay the full amount noted on the Order. In the event that Company performs any SEM pursuant to the Services performed hereunder and there is a credit to Customer’s account of less than $10.00 after such SEM has been performed and this Agreement has been terminated, Company shall not be required to perform any SEM to offset such balance or to refund Customer the cash equivalent thereof. As part of an SEM order, the Customer may choose to have a remote call forwarding (“RCF”) number included as an additional feature. Customer will be required to sign an RCF consent form at the time the SEM order is placed with Company. By signing the RCF consent form, the Customer acknowledges and accepts all related RCF terms and conditions as stated in Item 28 “Local Track – RCF” of this Appendix 1.
3. Websites and E-Commerce. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of creation and maintenance of a website or mobile website on Customer’s behalf (such website shall be considered for purposes of these Terms and Conditions, a “Customer Website”). Company reserves the right in its sole discretion to refuse to sell and design Customer Websites to a Customer who requests a site which Company deems is, including but not limited to, unlawful or inappropriate, constitutes harassment, racism, violence, obscenity, harmful intent, spamming, contains unacceptable adult content, commits a criminal offence, or commits privacy or copyright infringement. Customer acknowledges and agrees that it is solely responsible for ensuring that any Customer Websites comply with Applicable Laws, and for obtaining any Consents required from consumers using the Customer Websites; provided, that Company shall work in good faith to take commercially reasonable efforts to cooperate with Customer on any changes Customer feels are required to be so compliant, subject to additional fees to be mutually discussed and agreed-to for such cooperation. Customer may use the Digital Advertising purchased for the creation and maintenance of an interactive online store (a “Store”) for the sale of goods and services. Customer acknowledges and agrees that Customer will be solely responsible for all goods and services offered at and sold through the Store, including any claim, suit, penalty, tax, fine, penalty, or tariff arising and/or any failure to comply with any Applicable Laws, taxes, and tariffs, from the Customer’s exercise of Internet electronic commerce through the Customer Website and/or Store. In conjunction with the creation of such a Store, the Customer may choose to add an application to facilitate financial transactions including payment processing (a “Payment Processing Platform”). Customer acknowledges that Company shall only implement a Payment Processing Platform connection at Customer’s direction, that the Payment Processing Platform is an application provided by a third party and that Company has no liabilities or responsibilities for any interactions between the Customer and the Payment Processing Platform provider or the transactions that may result from the use of such Payment Processing Platform. Customer is responsible for compliance with the terms of any third-party applications added to the Customer Website by Company.
4. Social Media Services. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of creating advertisements on social networking sites (the “SMM Service”) on Customer’s behalf. Customer authorizes Company to act on Customer’s behalf in communications with social networking sites, and in the creation and modification of any content (“Customer Content”). Customer retains all rights to any Customer Content supplied to Company to submit, post or display on or through the SMM Service. Customer represents and warrants that all Customer Content submitted in connection with this SMM Service order will comply with all the terms of service of any applicable Partner Property and that it has collected any information pertaining to its customer in compliance with Applicable Law. Customer acknowledges that the SMM Service does not guarantee attainment of specific performance metric thresholds including but not limited to numbers of “fans”, “likes”, “followers”, leads generated, and so forth. Due to the variable results of SMM, product fulfillment may vary from targeted levels by as much as 50% in any given month of the term of the Order. In order to compensate for this variance or for any other reason, Company may, in its sole discretion, adjust the campaign fulfillment duration of an Order to match delivered fulfillment levels on a monthly basis. Adjustment of campaign duration shall not affect the obligation of Customer to pay the full amount noted on the Order. In the event that Company performs any SMM pursuant to the Services performed hereunder and there is a credit to Customer’s account of less than $10.00 after such SMM has been performed and this Agreement has been terminated, Company shall not be required to perform any SMM to offset such balance or to refund Customer the cash equivalent thereof. Customer indemnifies and holds Company harmless for all claims related to any SMM activities facilitated by Company including but not limited to contests and promotions, social conversation creation and feedback management.
5. Reputation Management. Pursuant to the applicable Order, Customer may request that Company provide Digital Advertising in the form of an automatic system that continuously monitors sources, collects and analyzes data and reports on how the Customer’s business is perceived by its customers (“Reputation Management”). Customer is responsible for ensuring Company has accurate business listing information for any business locations utilizing Reputation Management services. If the Customer has purchased Advanced Reputation Management, the following additional terms apply; Company may perform services designed to manage and respond to reputation-related events on third-party websites. Customer acknowledges that Reputation Management products do not guarantee attainment of specific performance metric thresholds including but not limited to number of reviews, average review rating, number of mentions, etc. Customer shall either (a) provide Company with specific responses to reviews or (b) authorize Company to respond to reviews by third parties in relation to Customer’s business; provided, that Company may provide Customer an opportunity to review any such response in Company’s sole discretion but shall not be obligated to do so; provided, further, that in either case of the foregoing (a) or (b), and regardless of whether Customer has reviewed such responses, Company is not responsible for the content of any such responses made in connection with the Services provided to Customer, or for any subsequent responses from consumers as a result. Customer shall indemnify and hold Company harmless for any responses made in connection with the fulfillment of services. In providing the Reputation Management, Company partners with VendAsta Technologies Inc. Customer acknowledges and agrees that, in connection with its purchase and use of, Reputation Management, Customer hereby agrees that in addition to these Terms and Conditions, Customer agrees to be bound by all the terms and conditions located at https://www.vendasta.com/terms/terms-of-service/, as may be amended from time to time.
6. Email Marketing and Advertising. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of email marketing services (the “Email Marketing Services”). Company makes no warranties or representations regarding the success of the Email Marketing Services. Customer shall provide Company with any e-mail addresses of and/or suppression lists containing customers for whom they have not received the required Consents (including any customers who have unsubscribed pursuant to the CAN-SPAM Act (defined below)) and represents and warrants that any email distribution lists provided by Company are otherwise in compliance with the Assault of Non-Solicited Pornography and Marketing Act of 2003, and all amendments thereto (the “CAN-SPAM Act”). Customer shall provide Company with any language to be included in any emails to ensure compliance with all Applicable Laws (including the CAN-SPAM Act). Company shall not electronically distribute any email marketing material without prior written approval of Customer.
7. Local Track – RCF. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of establishing and maintaining telephone numbers (the “Numbers”) or domain names (the “URLs”) to be used to measure incoming calls and website usage resulting from the Customer’s advertising campaigns (the “Forwarding Services”). Upon any person’s dialing the Numbers during the Term, the call will be forwarded to one or more phone numbers that Customer provides to Company, as indicated on the Order (the “Destination Phone Number(s)”). Upon any person’s navigation to the URLs during the Term, the user will be directed to a version of one or more URLs provided by Customer to Company, as indicated on the Order (the “Destination URL(s)”) and viewed through a proxy. The Customer represents and warrants to Company that the Destination Phone Number(s) & Destination URL(s) indicated above are the correct primary phone numbers and domain names used by the Customer in its business. Customer acknowledges that Company is not responsible for the use of the Numbers or URLs in any advertising campaigns not provided by Company. Customer acknowledges that upon, completion of the Term or cancellation at Company’s discretion as noted above, the Numbers and URLs associated to the applicable Order will no longer be functional as outlined above and Company bears no responsibility related to the cessation of the function of said URLs and /or Numbers. Customer acknowledges and understands that any telephone conversation as a result of the use of the Numbers may be recorded, and that the Voice Recording Service is intended to make an electronic recording of all telephone calls made to the Numbers for purposes of “quality assurance” and “customer service,” (the “Permitted Purposes”) only when a person (the “Caller”) makes a call to Customer through the Numbers. Upon calling Customer, such Caller will be automatically advised using a recorded message that each call is subject to recording and monitoring for the Permitted Purposes (a “Call Prompt Message”) prior to the connection of the telephone call to Customer. As a condition of usage, Customer expressly agrees and acknowledges that Applicable Law may require that Customer provide notice to and/or receive express Consent from, in writing or otherwise, all agents (including employees), independent contractors, and /or other persons who are on the receiving end of the recorded telephone calls (the “Call Receivers”). Customer agrees that Customer is solely responsible for providing and/or obtaining all Consents relating to Call Receivers, as required by Applicable Law. Customer may be required from time to time to certify in writing to Company, and update this certification on a monthly basis, that all Call Receivers have been notified, have provided requisite Consents and have given permission to have their voice, identity, and call content recorded, monitored, stored, and divulged. Customer agrees that Company has no responsibility to ensure that the recording, monitoring, storing, and/or divulging telephone calls, or the content of the Call Prompt Message itself, complies with Applicable Laws. Customer grants specific permission to Company to administer, monitor, use and access Customer recorded calls as Customer’s agent. Customer shall defend, indemnify, and hold harmless Company, its affiliates, employees, directors, officers and agents from any and all claims, liabilities, and/or damages (including, but not limited to reasonable attorneys. fees and costs) that arise from or relate to Customer use or misuse of the Forwarding Services. Customer shall not use the Forwarding Services to intimidate, harass, or otherwise violate the privacy or other rights of a Caller and a Call Receiver. If Company learns about any alleged misuse of the Forwarding Services, Company reserves the right to terminate Customer’s use of the Forwarding Services without prior written notice and without liability. Company may decide that the Forwarding Services will not be used to record the telephone calls to businesses that are deemed by Company to be in sensitive heading categories where recording of such calls may inadvertently expose sensitive or legally protected information.
8. Customer Relationship Management (“CRM”). Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of access to a platform for customer management that contains software, tools, and applications designed to allow Customer to capture leads and convert them to paying customers through automated marketing (the “CRM Platform”). Company will provide the CRM Platform in conjunction with Signpost, Inc. (“Signpost”).
8.1. Customer understands and agrees that Customer shall not (and shall cause its employees and representatives authorized to access the CRM Platform not to) (a) modify, translate, reverse engineer, decompile, disassemble, create derivative works of or otherwise seek access to the source code of the CRM Platform; (b) disclose, provide, distribute, license, sublicense, sell, assign or transfer the CRM Platform or Signpost’s user guides and other end user documentation for the applicable CRM Platform, as may be updated by Signpost from time to time (the “Documentation”), in whole or in part, to any party, or allow any party to in any way access or utilize the CRM Platform and Documentation other than as expressly provided herein; (c) access or use the CRM Platform or Documentation to knowingly infringe on, violate, dilute, or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (d) access or use the CRM Platform or Documentation to knowingly violate any Applicable Laws (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions implemented by the Office of Foreign Assets Control), unfair competition, anti-discrimination and/or false advertising); (e) access or use the CRM Platform to knowingly store defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (f) access or use the CRM Platform to knowingly store obscene, pornographic or indecent data in violation of Applicable Law; (g) access or use the CRM Platform to knowingly introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, other malicious or harmful code; or (h) remove from the CRM Platform or Documentation any language or designation indicating the confidential nature thereof or the proprietary rights or trademarks of Signpost. Customer understands and agrees that Customer is responsible for acquiring valid Consent from the recipient of any SMS or email marketing communications required by Applicable Law.
8.2. Customer hereby permits Signpost to collect online data from the Customer and through the CRM Platform regarding the Customer’s customers (the “Customer Data”), provided that Customer Data will not be used for any other purpose other than to improve the CRM Platform, and provide related support services to Customer, or as otherwise directed by Customer, including to respond to Customer’s request for assistance with any technical problems and/or queries related to the use of the CRM Platform, and provided further that Signpost shall also have the right to use or disclose Customer Data in a format that does not personally identify the identity of Company or any Customers, including as aggregated de-identified data. Customer acknowledges that it is the sender of emails in connection with the CRM Platform and is obligated to follow all legal requirements applicable to the sending of emails under the CAN-SPAM Act, including but not limited to the prohibition against sending unsolicited emails to person with whom Customer does not have a business relationship or who have not requested (opted-in) to Customer’s emails. Customer also agrees to only send permission-based emails, meaning that all recipients must have opted-in to receive email communications from Customer. Customer agrees that any and all emails it sends will include all information required by the CAN-SPAM Act. Customer shall not upload or incorporate into customer lists, or otherwise provide to Signpost any protected health information of any kind within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA). Customer also agrees that individual Customer subscriptions are for named Customers only and cannot be shared, transferred, or used by more than one Customer. Customer grants to Signpost a royalty-free, worldwide, irrevocable, perpetual, sub licensable, transferable license to use and incorporate in any manner whatsoever, including into the CRM Platform, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by such Customer relating to the operation of the CRM Platform. Signpost makes no warranties, representations or commitments regarding the CRM Platform. Customer agrees and acknowledges that Signpost is the owner of all right, title, and interest in and to the CRM Platform, documentation, and all intellectual property therein. At the end of the term of this this Purchase Order Customer agrees to discontinue use and destroy or return all copies of the CRM Platform.
9. Display Advertising. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of the creation and display of ads (“Ads”) in partnership with Simpli.fi Holdings, Inc. (“Simpli.fi”), on designated third-party websites within the Simpli.fi network of contracted sites. Ads may consist of one or many of the following placement strategies; site retargeting, search retargeting, contextual retargeting, and addressable geofencing (“AG”). Due to the variable nature of Digital Advertising and despite the best efforts of Company, product fulfillment may vary from targeted levels, in some cases substantially, in any given month during the Term of the Purchase Order. Due to this variance, fulfillment may be adjusted to match agreed-upon fulfillment levels on a monthly basis. Adjustment of duration shall not affect the obligation of Customer to pay the full amount noted on the applicable Order. Customer shall be responsible for providing Company with Customer Content for the purpose of creating such Ads, including ad copy specifying promotional offer details and promotional period duration. Company may also create additional content taken from Customer’s Website for the purposes of creating Ads. Prior to the placement of Ads, Company shall provide previews for Customer’s review and acceptance. Failure of Customer to provide acceptance shall in no way limit Customer’s responsibility for payment of the advertising. Thirty (30) days prior to the expiration of an Ad, Company will contact the Customer to obtain new Customer Content, or for permission to extend the duration of the existing Ad. In the event an Ad expires without a response from the Customer, Company may in its sole discretion continue to run the existing Ad until such time as Customer provides new Customer Content, or provides approval to extend the duration of the previous Ad. Customer acknowledges that the Ads utilize a platform that bids on and purchases ads on or through third-party platforms, which third-party platforms may be affected by third-party systems and that Company does not guarantee delivery of the Ads at any level. Customer shall (i) abide by all Applicable Laws, including those related to advertising, data privacy, and the transmission of technical or personal data, and all industry self-regulations and principles issued by the DAA, NAI or any other applicable industry group, as they may be amended from time to time. Customer represents and warrants that it has obtained all necessary rights and licenses from (a) in the case of third-party data, third-party providers of addresses provided by such party and (b) for first-party data, from users for provision or collection of their addresses provided by such party, each of (a) and (b) to enable Company to use the addresses for the purposes of providing the Services and AG to Customer in accordance with this Agreement. Under no circumstances shall Customer (a) provide to Company any personal information, personally identifiable information, EU Personal Data (as defined in the GDPR), or information capable of identifying a particular individual in the EU, (b) provide the Services to Advertisers that are not based in the United States, or (c) use the Services to target Ads to users located outside of the United States.
10. Yelp. Pursuant to an Order, Company may provide certain Digital Marketing Services in the form of the creation of profile pages and related paid advertisements (the “CPC Program”) in conjunction with Yelp, Inc. (“Yelp”). Customer hereby agrees that in addition to the terms set forth herein, Customer agrees to be bound by all the terms and conditions located at https://terms.yelp.com/tos/en_us/20200101_en_us/, as may be amended from time to time. Customer shall be responsible for providing certain Customer Content for the purpose of creating profile pages. Customer represents and warrants that all Customer Content submitted in connection with any CPC Program will comply with all Yelp’s terms of service. Customer acknowledges that CPC Program products do not guarantee attainment of specific performance metric thresholds including but not limited to numbers of “impressions”, “clicks”,” views”, “reviews”, leads generated, and so forth. Customer also acknowledges that end users have the right and ability to post reviews, subject to Yelp’s terms of service, which may be either positive or negative in subject matter and tone, as it related to their interaction with or opinion of Customer’s business. Customer indemnifies and holds Company harmless for any end user posted reviews, regardless of subject matter or tone, in perpetuity. With regards to CPC Program fulfillment, due to the variable nature of Digital Advertising and despite the best efforts of the Company, fulfillment may vary from targeted levels, in some cases substantially, in any given month during the Term of the applicable Order. Due to this variance, CPC Program fulfillment duration of the applicable Order may be adjusted to match agreed-upon fulfillment levels on a monthly basis. Adjustment of CPC Program duration shall not affect the obligation of Customer to pay the full amount noted on the Purchase Order. In the event that Company performs any CPC Program pursuant to the Services performed hereunder and there is a credit to Customer’s account of less than $10.00 after such CPC Program has been performed and terminated, Company shall not be required to perform any CPC Program to offset such balance or to refund Customer the cash equivalent thereof. As part of a Listing Optimization order, the Customer may choose to have an RCF number included as an additional feature. By selecting an RFC number on an Order Customer consents to all related RCF terms and conditions as stated in Section 7 of this Appendix I (Local Track – RCF) of this Agreement.
11. Other Services. From time to time, Customer may contract with Company pursuant to an Order for additional Digital Marketing Services or related Services not otherwise described herein (“Additional Services”). Any Additional Services remain subject to the Terms and Conditions applicable to all Services Company provides, including with respect to Customer’s obligation to ultimately ensure compliance with all Applicable Laws (subject to Company performing its Services in accordance with the Applicable Laws applicable to Company’s business).