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The Indextree Online Marketing Services are subject to the terms and conditions outlined in these Terms and Conditions, the terms of any corresponding Work Order, and all applicable policies and guidelines published from time to time by Indextree (collectively the "Agreement"). These Terms and Conditions are incorporated by reference into all Work Orders.
In the event that any provision of a Work Order expressly conflicts with any provision of these Terms and Conditions, the specific provision of the Work Order shall prevail to the extent there is an express conflict.
For the purposes of this Agreement, "Advertisement" shall include any Advertiser profile, listing, advertisement, content, Web site, material or other information provided by Advertiser or on behalf of Advertiser for the services outlined in the Work Order.
1. INDEXTREE DISTRIBUTION NETWORK: Advertiser authorizes Indextree to act on its behalf as its purchasing agent for distribution of its Advertisement with any of its authorized distribution partners and vendors. Indextree does not guarantee inclusion in the results of any particular authorized distribution partner.
2. BID MANAGEMENT: Advertiser acknowledges that Indextree shall serve as its agent in purchasing media and other services on its behalf in connection with any Paid Search Services it provides. In this connection Advertiser authorizes Indextree to accept any applicable terms and conditions, on behalf of Advertiser, related to purchases made on behalf of Advertiser, and Advertiser further assumes the obligations of any such terms and conditions accepted in connection with any purchases made on its behalf by Indextree. Indextree shall only be responsible for the payment of invoices for any such services to the extent it has been timely paid by Advertiser for such related amounts. Prior to full and timely payment by Advertiser to Indextree, Advertiser shall be solely liable for amounts invoiced in connection with such services. Advertiser agrees that Indextree may provide a copy of this Agreement corresponding Work Order or other confirmation with respect to the agency relationship, as determined by Indextree, if so requested by related vendors.
Indextree is subject to the tracking data and calculations of the applicable distribution partners and vendors. Based on such data, calculations and invoicing, Indextree will make payment on behalf of Advertiser, as its purchasing agent, to the extent Indextree has been paid by Advertiser. Advertiser understands and agrees that such measurements will be the only and definitive measure of the amounts payable by Advertiser for these such services. Advertiser shall be liable for all penalty and other amounts that may be due to any distribution partner or vendor as a result of Advertiser's failure to timely pay amounts due by Advertiser.
3. USE OF SUBMISSIONS: Advertiser irrevocably grants Indextree, its partners, vendors licensees and any entities in the Indextree distribution network, the worldwide right to use, display and publish the Advertisement and any links to Advertiser's Web site(s) for the purposes of delivering the services contemplated under the Work Order, including, without limitation, modifying it for the purposes of complying with display parameters or using it commercially and authorizing others to do so for such purposes. Advertiser further irrevocably grants Indextree the right to deliver and sublicense the use of the Advertisement to any authorized distribution partner that Indextree deems relevant to the distribution of the Advertisement.
Indextree may modify or replace keywords based on best search practices and industry standards, including without limitation, methodologies that correct misspellings, combine singular and plural terms and filter inappropriate terms. Indextree reserves the right to update and change these methodologies in its discretion.
4. MODIFICATION OF ADVERTISING TACTICS: Indextree may at any time raise the minimum bid requirement, monthly spending cap or pricing terms for Advertisements managed by the Indextree on behalf of Advertiser.
5. USAGE STATISTICS: Upon Advertiser's reasonable written request, Indextree will provide Advertiser usage statistics pertaining to the number of clickthroughs. Advertiser may not distribute or disclose such usage statistics to any third party without Indextree's prior written consent. Advertiser acknowledges that Indextree has not made any guarantees with respect to usage statistics or levels of impressions for any Advertisement. Indextree provides Advertiser with estimated usage statistics only as a courtesy and shall not be held liable for any claims relating to such usage statistics.
6. RESULTS FROM ONLINE MARKETING STRATEGIES: Our Search Engine Optimization services will significantly improve your site not only for the search engines but for your users as well. This should result in higher rankings in major search engine results pages, and typically take several weeks or months to materialize. Many variables which are out of our control prevent us from affording any guarantee on positioning or timing of the desired results. Ranking results are also impacted by search engine algorithm changes, industry competitiveness, keyword competitiveness and numerous other off-page factors. It may also be impacted by actions that you may take such as making changes to the site, overuse of auto-submit or auto-rank checking programs, the presence of mirrored sites or duplicate content to name just a few.
7. COOPERATION: The successful and timely implementation of the Online Marketing strategies depends in part on your cooperation. Your contribution may include the development of content for the website, the timely review, feedback and approvals of certain aspects of the strategy, providing FTP access to your website or contact to upload optimization suggestions to the website and other dependencies.
8. INVOICES: Advertiser agrees to pay Indextree all applicable fees, charges and invoices in conformity with these Terms and Conditions and the related Work Order.
The Initial Set Up fee, initial deposit and service fee are nonrefundable. Late payments will be subject a charge equal to the lower of 1.5% per month accruing from the payment due date or the maximum amount allowed by applicable law. Termination of the Agreement and payment of late fees shall not prejudice any other rights or remedies that may be available to Indextree with respect to nonpayment or late payment of applicable fees.
Indextree reserves the right to use credit reporting agencies or other means to verify and evaluate the credit information of Advertiser.
The parties acknowledge that Indextree is subject to the tracking data and calculations of its distribution partners and vendors. Based on this information and such partner or vendor's invoicing, Indextree is obligated to make payment in certain cases on behalf of Advertiser. In this context, Advertiser agrees that Indextree will be solely responsible for tracking and calculating clickthroughs delivered and all other traffic measurements or data, and Advertiser understands and agrees that such measurements will be the only and definitive measure of the amount of clickthroughs.
Campaign overruns can occur from time-to-time as a result of the various moments search engines and directories refresh their indexes. Overruns, not to exceed 10% of the amount ordered, shall constitute full and complete delivery. Overruns will be billed at the quoted unit price for the quantity ordered.
Indextree may allocate up to $0.07 of the total agreed CPC Rate to RPM Tracking or other administrative services, irrespective of the individual online Marketing Services identified on the Work Order; provided, however, that this allocation shall not alter the total payment and CPC Rate obligations of Advertiser set forth on the applicable Work Order.
9. PAYMENT BY CREDIT CARD: Advertiser may elect to make payment by credit card. Indextree also reserves the right to require payment for Advertising Services by credit card. In the event that payment shall be made by credit card, Advertiser agrees to authorize Indextree to charge its credit card for such payments and for any amounts owed under this Agreement. If Indextree is unable to collect owed amounts from Advertiser's credit card, Advertiser shall pay to Indextree an insufficient funds fee equal to 5% of the total amount due. In the event that Indextree is unable to charge an Advertiser's credit card or if there is a chargeback for any reason, Indextree may in its sole discretion immediately suspend or terminate Advertiser's participation in any or all of the Indextree Advertising Services.
In the event Indextree has accepted a recurring payment structure, Advertiser hereby authorizes credit card company or bank and any third party automated payment or debit service utilized by Indextree to automatically make payments to Indextree and charge or debit Advertiser 's specified account for the amount of the payment on the agreed upon recurring basis. This authorization will remain in effect until 30 days following Indextree's receipt of Advertiser's written notice of termination of the authorization. In the event that Advertiser's electronic debit or transfer is returned after redeposit, Advertiser understands that a $25.00 return item fee will be charged to Advertiser's account electronically.
10. PAYMENT DISPUTES: Advertiser agrees to notify Indextree within five (5) days after the end of the month of any discrepancies in Advertiser's account, including charges, clickthroughs or other performance issues. In the event that Advertiser does not notify Indextree 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. Advertiser further agrees that it will be responsible for all reasonable collection expenses (including attorneys' fees) incurred by Indextree to collect any payments owed by Advertiser to Indextree.
11. ADVERTISER REPRESENTATIONS AND WARRANTIES: Advertiser represents and warrants to Indextree that for the term of this Agreement:
• this Agreement constitutes a valid and binding agreement enforceable against Advertiser in accordance with its terms.
• any information or data that Advertiser, its agents or representatives has provided under any Indextree Online Marketing Service is and will be both accurate and complete.
• Advertiser is the authorized owner or representative of the Web site(s) for which keywords are selected or listings are requested or an Advertisement has been submitted.
• Advertiser has the necessary rights and licenses to permit Indextree to perform the services contemplated in the Work Order in connection with the content, marks, names and other materials on Advertiser '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.
• The keywords selected by the Advertiser, and the content and information in or associated with Advertiser's Web site(s) for which links are requested, and Advertisements submitted by Advertiser:
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comply with the Advertising Guidelines in effect from time to time; |
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do not violate any applicable law or regulation; |
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do not infringe in any manner any third party rights, including, without limitation copyright, patent, trademark, trade secret or other intellectual property right or right of privacy or publicity; |
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are not false or misleading; |
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have not and will not result in any consumer fraud, product liability, breach of contract, injury, damage or harm of any kind to any person or entity; |
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are not defamatory, libelous, slanderous, or threatening; |
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are free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to, or have the capacity to, damage, interfere with, intercept or expropriate any system data or personal information; |
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do not contain any form of spyware, adware, or other software that is installed in a user's computer to collect information or is installed without the express consent of the user; and/or |
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do not contain, link to or promote any of the following: violence, hate crimes (whether racial or otherwise), illegal activities, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age. and does not contain any libelous matter. |
12. ADVERTISER COVENANTS: Advertiser further agrees as follows:
. Advertiser will not hold Indextree or its affiliates liable or responsible for the activities of visitors who come to Advertiser's site through a link provided from the Indextree distribution partners and vendors.
. Advertisers that sell or promote adult materials, alcohol or tobacco products, or other age restricted products and/or services must have age verification on their Web sites' home page and in the sales process in compliance with all applicable laws and regulations, and such Advertisers do not offer such products and/or services in jurisdictions in which they are prohibited or are in any way restricted.
. Advertiser shall monitor and comply with the terms and conditions, rules, guidelines and policies in effect with respect to the Marketing Services as may be posted from time to time on the Indextree Web site or such successor sites.
. Advertiser grants a nonexclusive and royalty-free license to Indextree to use the contents of the Advertisement for the purposes set out in the Work Order.
13. ADVERTISER INDEMNIFICATION OBLIGATIONS: Advertiser agrees to indemnify, defend and hold harmless Indextree, its distribution partners and vendors, its licensors and licensees, and affiliated companies, 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 (collectively being referred to herein as a "Claim") 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, Advertiser's selected keywords, Advertiser's Advertiser 's Web site(s) or contents therein, Advertiser's conduct, acts or omissions, or any alleged or proven breach by Advertiser of any term, condition, agreement, representation or warranty set out in the Agreement. Indextree will notify Advertiser of any claim, action or demand for which indemnity is required in the reasonable opinion of Indextree and will cooperate reasonably with Advertiser at Advertiser's expense. At the election of Indextree, Advertiser shall advance to Indextree amounts in satisfaction of such Claim, which Indextree may hold in escrow pending resolution of such Claim. The law firm Advertiser chooses to defend Indextree must be experienced in defending similar claims and will be subject to Indextree's approval, which will not be unreasonably withheld. Advertiser may not settle any lawsuit or matter relating to the culpability or liability of Indextree without the prior written consent of Indextree. Indextree 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. Without limiting any rights and remedies hereunder or under applicable law, Indextree shall have the right to set off any liability of Advertiser to Indextree with respect to a Claim against any amounts held on deposit with Indextree by Advertiser.
14. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER: The online marketing service is provided on an "as is" basis and as available, without any warranty or representation of any kind, whether express or implied. Advertiser acknowledges that Indextree has not made any guarantees with respect to usage statistics or levels of impressions for any Advertisement and shall not be held liable for any claims relating to such usage statistics. Neither Indextree nor anyone else involved in providing the online marketing service will be liable to Advertiser or any third party for any claims or damages from the use of or inability to access the Advertisement(s) or for mistakes, omissions, service interruptions, force majeure, deletion of files, loss of data or any other failure of performance. Indextree shall also not be liable for any damages arising out of the translation of advertising into other languages. Advertiser acknowledges and agrees that it will not hold Indextree liable for any errors in content, omissions, consequences, damages, costs, refunds or rebates of any kind arising from any interruption of service or other unavailability of the Internet or Web site in which the Advertisement is published for whatever reason. Indextree makes no representations or warranties relating to the results of the Advertisement, including without limitation, the number of impressions or clickthroughs such Advertisement will receive and any promotional effect or return on investment thereof. Indextree makes no guarantees regarding the accuracy, reliability or completeness of any usage statistics. Advertiser expressly acknowledges that Indextree's liability is specifically limited to the amounts paid to and received by Indextree for the advertisement(s) provided under the Work Order. In the event that Indextree fails to publish Advertisement or in the event of any other failure, technical or otherwise, of Advertisement to appear as provided in this Agreement, the sole liability of Indextree shall be limited to, at Indextree's option, either a pro rata refund to Advertiser of the fee paid, if any, or placement of Advertisement at a later time. In no event shall Indextree be responsible for any consequential, special, lost profits or other damages arising under this Agreement including, but not limited to, failure to timely publish Advertisement in accordance with the Agreement. Without limiting the foregoing, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action, fire, flood, earthquake, power failure, riot, explosion, labor or material shortage, carrier interruption of any kind or work slowdown. Advertiser waives all rights of recovery of any damages, whether actual, special, punitive or consequential, that Advertiser may incur over and above said amounts, including without limitation, damages for lost profits, income, goodwill or any claims of third parties whatsoever with respect to the Advertisement(s) or such limitation of liability to the fullest extent permitted by law. Advertiser agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this agreement or to your listing must be filed within one (1) year after such claim or cause of action arose or be forever barred.
INDEXTREE MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE INDEXTREE ADVERTISING SERVICE, 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, INDEXTREE DOES NOT WARRANT OR GUARANTEE THAT THE INDEXTREE ONLINE MARKETING SERVICE OR OPERATION THEREOF WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET ADVERTISER'S REQUIREMENTS, AND INDEXTREE SHALL NOT BE LIABLE FOR THE CONTENT OF ANY WEB SITES ON THE INDEXTREE NETWORK. INDEXTREE 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 ADVERTISER, FAILURE TO INCLUDE ADVERTISEMENT, OR IF ANY OF INDEXTREE'S ADVERTISING SERVICES BECOME INOPERABLE OR INCAPABLE OF PERFORMING AS INTENDED. INDEXTREE 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, 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 INDEXTREE'S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY ADVERTISER TO INDEXTREE FOR THE ADVERTISEMENT WHICH IS THE BASIS OF LIABILITY OR THE AMOUNT PAID BY ADVERTISER TO INDEXTREE IN THE LAST TWELVE (12) MONTHS, WHICHEVER IS LESS.
15. CONFIDENTIALITY: During the term of this Agreement, and for a period of two (2) years following its termination, the Parties will not use or disclose any Confidential Information of the other Party. "Confidential Information" includes (a) Advertisements, prior to publication, (b) the terms of any Work Orders, (c) any information disclosed to the other Party, (d) results or data and the performance relating to any Indextree Online Marketing and (e) any proprietary information shared pursuant to this Agreement, including business plans, 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; (d) required to be disclosed by law or by a governmental authority.
16. TERMINATION: 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. Indextree may, in its sole discretion, terminate this Agreement at any time and for any reason. Following such notice period, Advertiser will be billed for any amounts still owed to Indextree. Any amounts for services provided under any Online Marketing Service are non-refundable.
17. INFORMATION REQUEST: Upon request, Advertiser agrees to provide Indextree with whatever information Indextree may reasonably require about the background of Advertiser and/or the business of Advertiser.
18. NOTICE: Any notice or other communication required or permitted to be given under or in connection with this Agreement shall be in writing and sent to Company or Representative, as the case may be, as follows:
If to Indextree: Attn: General Counsel, at support@Indextree.com
If to Advertiser: addressed to Advertiser at the physical address or email address shown on the corresponding Work Order, or to such other address as each party may hereafter specify in writing to the other party.
All notice periods refer to calendar days unless otherwise noted, and all notices shall be deemed to have been given upon receipt or, (i) if sent by courier or priority U.S. mail, three (3) days after the notice was handed to the courier in question, or the U.S. Postal Service, (ii) if sent by first class mail, five (5) days after the notice has been handed to the U.S. Postal Service, whichever occurs earlier.
19. MISCELLANEOUS: The Agreement between the parties supersedes all prior and contemporaneous agreements and Advertiser agrees it has relied upon no representations, oral or otherwise, not contained within the Agreement. 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. Advertiser agrees to work with Indextree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.
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.
Advertiser shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of Indextree. Indextree 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 Indextree's Advertising Services.
This Agreement shall be governed by and construed according with the laws of the State of California. Advertiser hereby irrevocably consents to the personal jurisdiction of and venue in the state and federal courts located in Orange County, California with respect to any action, claim or proceeding arising out of or relating to this Agreement. Indextree reserves the right to change the terms to this Agreement by posting such changes on the Indextree Web site. Advertiser's continued participation in any Indextree Online Marketing following such changes shall be deemed an assent to such changes.
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