These General Terms and Conditions (these “General Terms”) and each applicable Schedule hereto govern and are incorporated into each order form or other order confirmation referencing or attaching these General Terms and entered into between American Marketing & Publishing, LLC, a Delaware limited liability company (“Publisher”), and the customer named in such order form or order confirmation (“Advertiser”).
1.Products; Order Forms; Binding Terms.
(a) Advertiser has engaged Publisher to provide services (“Services”) in connection with one or more products (including applicable Services, each a “Product”) identified in an (i) order form signed and submitted to Publisher, (ii) order form accepted by Advertiser electronically (for example, by clicking on an “I Agree” or similar icon), and/or (iii) order confirmation form delivered to Advertiser by Publisher following Advertiser’s oral agreement to purchase such Products via recorded telephone call(s) (in each case, the “Order Form”), subject to these General Terms and each applicable Schedule hereto setting forth additional terms and conditions with respect to Products identified in the Order Form (“Product Terms”). BY TAKING ANY OF THE ACTIONS DESCRIBED IN THE FOREGOING CLAUSES (i), (ii) OR (iii), ADVERTISER EXPRESSLY ACKNOWLEDGES AND AGREES TO THE APPLICABLE PRODUCT TERMS AND THESE GENERAL TERMS, WHICH INCLUDE, WITHOUT LIMITATION, DISCLAIMERS OF WARRANTIES, LIMITATIONS AND EXCLUSIONS OF LIABILITY AND REMEDIES, A CHOICE OF ILLINOIS LAW, AND MANDATORY ARBITRATION AND CLASS ACTION WAIVER, WHICH REQUIRES ADVERTISER TO RESOLVE DISPUTES WITH PUBLISHER ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION.
(b) Advertiser acknowledges that Publisher provides local marketing Services in the form of its Products at lower rates than many of its competitors, and that all the terms and conditions of this Agreement are a part of the essence of the deal, are reasonable and necessary to enable the low cost business model of Publisher, and are advantageous to Advertiser. If Advertiser does not accept these General Terms and Product Terms, or any other term or condition of this Agreement, and desires to revoke its acceptance to this Agreement, Advertiser may cancel this Agreement in the manner and within the timeframe described in Section 2(a)
(c) The Order Form referencing or attaching these General Terms, together with all applicable Product Terms, these General Terms, and any additional terms incorporated by reference herein shall collectively be referred to herein as this “Agreement”. In the event of any conflict or inconsistency between an Order Form and the General Terms or Product Terms, the General Terms or Product Terms will prevail. In the event of any conflict or inconsistency between any Product Terms and these General Terms, such Product Terms will prevail with respect to the applicable Product. Notwithstanding the foregoing or anything to the contrary in this Agreement, NOTHING IN AN ORDER FORM OR PRODUCT TERMS WILL LIMIT ANY WAIVERS, RELEASES, DISCLAIMERS, LIMITATIONS OR EXCLUSIONS OF LIABILITY OR REMEDIES, RIGHTS OF PUBLISHER, OR OBLIGATIONS OF ADVERTISER UNDER SECTION 15 OR SECTION 16 OF THESE GENERAL TERMS. No provisions of this Agreement shall be construed against the Publisher due to the fact that many essential terms were drafted or prepared by the Publisher, and each party expressly waives the application of any doctrine or statute calling for ambiguities to be construed against the drafter.
(d) If, following the Acceptance Date, any additional documentation with respect to Products is necessary or desirable, in Publisher’s reasonable determination, due to changes to Products or the Order Form requested by Advertiser or other requests outside the scope of the agreed Services, which requests Publisher desires to accept in its sole discretion, Publisher may provide to Advertiser a change order (“Change Order”), which will be governed by and subject to the then-current General Terms and applicable Product Terms and may be executed, accepted or agreed to by Advertiser as described in Section 1(a) or by earlier payment of the fees set forth in the Change Order and, subject to acceptance by Publisher, will thereafter constitute an additional Order Form under this Agreement.
(e) If all or any portion of this Agreement (as defined below) is entered into orally or electronically, it shall have the same force and effect as if Advertiser had manually signed a paper version thereof. In exchange for this convenience, Advertiser hereby irrevocably waives or “opts-out” of any rights that Advertiser may have under applicable law to receive physical copies of this Agreement. Furthermore, Advertiser agrees that all business pursuant to this Agreement may be conducted with Advertiser electronically in the sole discretion of Publisher, including invoicing, payment, customer service and other communications, and notice from the Publisher.
(a) Other than as set forth in clauses (b) and (c) below, Advertiser may only cancel this Agreement by providing written notice to Publisher within two days of the date that Publisher accepts this Agreement by providing a copy of this Agreement, executed, accepted or otherwise agreed to by Advertiser, physically or electronically to Advertiser (such date, the “Acceptance Date”). Such notice must be sent by an authorized representative of Advertiser, either by email delivered to firstname.lastname@example.org or as set forth in Section 20 and postmarked within two days of the signing or authorization of this Agreement by Advertiser. Any such cancellation notification must (i) clearly identify the Advertiser and the authorized individual requesting the cancellation on behalf of the Advertiser, and (ii) expressly identify the particular Product(s) intended for cancellation. Any cancellation by Advertiser made or attempted later than two days after the signing or authorization of this Agreement shall not relieve Advertiser of the obligations and responsibilities hereunder, including Advertiser’s payment obligations. For the avoidance of down, a cancellation by Advertiser of this Agreement in accordance with this Section 2(a) shall not affect any other Order Forms or agreements between the parties.
(b) Advertiser may cancel a Product effective at the end of the then-current Product Term (as defined below) by providing Publisher written notice of non-renewal at least five business days prior to the end of such Product Term. Such notice must be sent by an authorized representative of Advertiser, either by email delivered to email@example.com or as set forth in Section 20. Any such non-renewal notice must (i) clearly identify the Advertiser and the authorized individual requesting the cancellation on behalf of the Advertiser, (ii) expressly identify the particular Product intended for cancellation, and (iii) express a clear intention to cancel any subsequent Monthly Renewal Terms (as defined below).
(c) Advertiser may terminate this Agreement in the event Publisher commits a material breach of any of its material obligations under this Agreement and fails to cure such breach within 30 days after receiving written notice thereof.
(d) Publisher may terminate this Agreement or cancel any or all Product(s) under the Order Form, at any time and for any reason or no reason upon written notice to Advertiser; provided that for a termination or cancellation without cause, Publisher will give Advertiser at least five business days’ prior written notice. In the event of a termination or cancellation under this Section 2(d), with respect to the ratable portion of the fees previously paid to Publisher for the remaining portion of the then-current term applicable to the cancelled Product(s) (if any), Publisher will, in its sole discretion, either (i) return such amount to Advertiser, or (ii) apply such amount to Advertiser’s account for other Product(s) purchased by Advertiser.
(e) In addition, Publisher may terminate this Agreement or cancel any specific Product(s) under the Order Form, or suspend Services in connection with any Product, in the event that (i) Advertiser fails to pay any amount when due as set forth in this Agreement or under the terms of any other agreement with Publisher; (ii) Advertiser otherwise breaches this Agreement; (iii) a petition under any bankruptcy law is filed by or against Advertiser, Advertiser executes an assignment for the benefit of creditors, a receiver is appointed for Advertiser’s assets or Advertiser becomes insolvent or takes advantage of any insolvency or any similar statute; or (iv) Advertiser fails to cooperate in fulfilling the essential objectives of a Product (in each case, a “For-Cause Cancellation”). A For-Cause Cancellation shall not relieve Advertiser of payment obligations under this Agreement for the full then-current term of each of the Products subject to an Order Form.
(f) Notwithstanding any cancellation of any Products by either party, other than a cancellation pursuant to Section 2(a), Publisher and Advertiser intend that the rights and obligations of both parties as to any other Products not cancelled shall remain in full force and effect, as though the cancelled Products were not part of this Agreement.
3. Survival; Effect of Termination.
(a) Sections 2(f), 3, 5(b), 5(d), 5(e), 6, 8(c), and 9 through 23 of these General Terms, and any other rights and obligations of the parties under this Agreement which by their nature must survive cancellation, termination or expiration of this Agreement in order to achieve their fundamental purposes, shall survive any termination or expiration of this Agreement or the cancellation of any Product(s), other than a cancellation pursuant to Section 2(a).
(b) Upon expiration or termination of this Agreement, Advertiser shall immediately cease accessing and using the Products. Following termination of this Agreement or cancellation of a Product, Publisher will have no responsibility to maintain, host or display, and Publisher shall not return and may delete (other than as explicitly set forth in the Product Terms with respect to an applicable Product), any Content (as defined below) or other data or information created, collected or developed for, by or on behalf of Advertiser, including User Generated Content, Performance Data, Registration Communications (each as defined below), usernames, passwords, emails, credentials or domain names.
4. Minimum Term; Renewals.
(a) This Agreement shall commence on the Acceptance Date and remain in effect until the expiration or cancellation of the last Product Term (defined below) under the Order Form or earlier termination hereof in accordance with this Agreement. Unless another term is specified on the Order Form or in Product Terms with respect to a particular Product, the term of service for each Product (“Minimum Term”) is 12 months from the Acceptance Date, except that for print directory advertising, as described in Schedule A, the Minimum Term is the issue length of the directory in which advertising is purchased. The “Product Term” for a particular Product shall be each applicable Minimum Term, Monthly Renewal Term or other term of service set forth in the Order Form.
(b) Other than for print directory advertising, unless and until (i) the parties affirmatively renew the term of service for a Product for an additional Minimum Term by executing, accepting or agreeing to a new Order Form accepted by Publisher as described in Section 1(a) above (or otherwise as set forth in the Order Form), or (ii) a party delivers to the other party a notice of cancellation with respect to a Product prior to the expiration of the then-current Product Term, in order to ensure continued and uninterrupted access to the Product(s), the term of service for each Product shall automatically renew on a recurring month to month basis (each monthly renewal, a “Monthly Renewal Term”). In the event of a Monthly Renewal Term, Publisher will continue to provide Services in connection with the Product under the Order Form, subject to the then-current General Terms and applicable Product Terms posted and available at ampcorporate.com/legal/AdvertisingGeneralTerms&Conditions.
(a) Advertiser shall pay Publisher the amounts shown on the Order Form or any payment plan agreed to by the parties (“Payment Plan”) (which is incorporated herein by reference); provided that, for any Monthly Renewal Terms, unless otherwise specified on an Order Form, Advertiser shall pay Publisher the monthly rate for the Product at a cost representing one twelfth of the full, un-discounted, unbundled Product rate set forth on the Order Form (or in the case of a Product with a Minimum Term of less than 12 months, a pro-rated price for each Monthly Renewal Term equivalent to that part of the Minimum Term represented by one month). Except as explicitly set forth in this Agreement, all payments made by Advertiser are non-refundable. Publisher may, in any Order Form or invoice, require that payment be made to an escrow account, lockbox, trustee or other designee to receive payment on behalf of Publisher.
(b) In addition, Advertiser will pay, and will be solely responsible for, any and all sales, use, or other local, state, federal, or other or governmental fees or charges arising out of or in connection with the Products that are the subject of this Agreement, other than taxes based on Publisher’s net income.
(c) With respect to any amount not paid by Advertiser upon the Acceptance Date, except as otherwise set forth in the Order Form, Payment Plan or invoice, Advertiser shall pay Publisher (or, if applicable, Publisher may charge or debit Advertiser), (i) in connection with telephone directory advertising, upon printing of the directory; (ii) in connection with Google Street View Trusted Services, on the date of the photoshoot; and (iii) in connection with all other Products, within 45 days after the Acceptance Date. If Publisher issues an invoice to Advertiser, the invoiced amount will be due in full, without set off, on or before the due date set forth in such invoice (or, if no due date is set forth in the invoice, within 30 days after the date of the invoice).
(d) Advertiser may dispute an invoice by notifying Publisher in accordance with Section 20 within 15 days after the invoice date. IF ADVERTISER DOES NOT PROVIDE NOTICE OF DISPUTE WITHIN SUCH PERIOD, ANY DISPUTE WITH RESPECT TO SUCH INVOICE, AND ANY CLAIMS IN CONNECTION THEREWITH, SHALL BE DEEMED IRREVOCABLY WAIVED BY ADVERTISER. Advertiser may verify outstanding amounts due by contacting Publisher at the telephone number set forth on the Order Form. In the event that the Advertiser has an unpaid balance from a previously purchased Product, or if Advertiser contracts with Publisher for multiple Products, Publisher, in its sole discretion, may apply any amounts paid by Advertiser in connection with this Agreement to any balance outstanding in connection with any agreement between the parties, including finance charges and late fees.
(e) Advertiser’s payment by check represents Advertiser’s express authorization that (i) Publisher from time to time may recover payments from Advertiser for amounts owing to Publisher that are the subject of this Agreement or any prior or subsequent agreement between Publisher and Advertiser, including amounts periodically due from Advertiser to Publisher under a Payment Plan or that become due in connection with renewals and subsequent Product Terms, and (ii) returned checks may be re-presented, and Publisher may draw a check on or electronically debit Advertiser’s account for the lesser of a return fee of $25 or the state allowed maximum fee. In each case, Publisher may initiate ACH electronic debit entries to any of Advertiser’s accounts identified on any checks issued by Advertiser to Publisher, set forth on any Payment Plan forms, or otherwise provided by Advertiser to Publisher (collectively, “Advertiser Accounts”). Advertiser represents to Publisher and agrees that all such accounts are and shall be used primarily for business purposes. Advertiser may revoke this authorization only by notifying Publisher in accordance with Section 20; provided that revocation notice is not effective until it is received by Publisher and Publisher has a reasonable opportunity to act on the revocation. Advertiser agrees to be bound by the operating rules of the National Automated Clearing House Association (NACHA) as are in effect from time to time. In the event that Advertiser has provided Publisher with an authorization to charge Advertiser’s credit card and provides Publisher with the necessary payment data, Advertiser agrees to ensure that the credit card will remain current and operable throughout each Product Term. In the event that Advertiser’s scheduled credit card payment under an Order Form or Payment Plan for any Product Term is declined, Advertiser agrees to pay a $15 collection activity fee in addition to the amount owed. ADVERTISER HEREBY RELEASES PUBLISHER AND ITS APPLICABLE VENDORS, INCLUDING ANY PAYMENT PROCESSORS, FROM ANY AND ALL CLAIMS ARISING FROM THE USE OF ANY MEANS OF ELECTRONIC OR AUTOMATIC PAYMENT METHOD.
6. Late Payment.
(a) If Advertiser fails to pay any amounts due in strict compliance with the Agreement, Publisher shall have the right, in addition to any other rights or remedies under this Agreement or at law, to add to all past due amounts that remain unpaid a monthly finance charge, equal to the lower of 1.5% compounded monthly or the maximum rate permitted by applicable law, in addition to a $15 collection activity fee. Advertiser agrees to pay these charges. In the event Publisher refers Advertiser’s account to a collection agency or attorney due to non-payment, Advertiser agrees to pay for all of Publisher’s costs and expenses incurred in connection with the collection of any overdue and unpaid amounts, including court costs and reasonable collection agency or attorneys’ fees.
(b) In the event that Advertiser fails to (i) make payments agreed to in a Payment Plan when scheduled, or (ii) fails to fully pay any other overdue amount not disputed in accordance with Section 5(d) for a period of 90 days past the original due date, and remains unpaid despite Publisher’s mailing or emailing of a courtesy reminder of the past due status of Advertiser’s account and a request for immediate payment, Advertiser hereby expressly authorizes Publisher to treat as immediately owing and due the aggregate amount of the Products that are the subject of this Agreement or any other agreement between Publisher and Advertiser, through the end of the then-current Product Term(s) for those Products, in addition to any reasonable costs of collection, court costs, or attorneys’ fees. Advertiser authorizes Publisher to recover such amounts by initiating ACH electronic debit entries to any Advertiser Accounts and debiting such amounts from such accounts.
8. Actions Taken on Behalf of Advertiser.
(a) In connection with Publisher’s provision of Services in connection with applicable Products (including an OPTIMA™ Product as described in Schedule B), Advertiser authorizes Publisher, on behalf of Advertiser, to create, claim, authenticate, register, deprecate, or delete any account or profile, or enhance, edit, manage, update, or revise information about Advertiser at websites, search engine sites, social media sites, marketing or advertising platforms, portals, or databases owned, controlled or operated by Publisher or third parties (each a “Platform”). To the extent that provision of Services for a Product involves creating, updating, posting and/or managing messages, notifications, news, alerts, announcements or updates, event information, offers or other promotions (“Posts”) or other Content on, or sending or receiving messages through, a Platform, Advertiser authorizes Publisher to conduct such activities on Advertiser’s behalf, including by creating or registering usernames, email addresses, passwords, or an Advertiser business profile or other account, and taking any other registration steps required by such a Platform and deemed necessary, beneficial, or expedient to fulfill the objectives of the Product in the reasonable discretion of Publisher (each a “Registration”).
(b) Advertiser hereby appoints Publisher, during each Product Term, to serve as Advertiser’s exclusive agency of record to, on Advertiser’s behalf, establish Registrations, maintain access to Platforms, interact with Platforms, and create, update, post and manage Content during each Product Term in order to provide Services in connection with the Product, as well as for any subsequent reasonable period necessary for Publisher to remove such Content and Registrations. Advertiser may revoke such agency of record appointment only by providing notice to Publisher in accordance with Section 20.
(c) Advertiser acknowledges and agrees that Publisher may, but shall not be obligated to, access and review data, reports, solicitations, or other correspondence sent by a Platform in response to or following a Registration (collectively, “Registration Communications”), and shall have no obligation to respond to, or forward to Advertiser, any such Registration Communications. Publisher shall only establish Registrations and use Registration Communications to provide the specific Services that are necessary to fulfill the applicable Product.
(d) If Advertiser wishes to access or review Registration Communications, then during the applicable Product Term, and for a period of 60 days following the termination of this Agreement or expiration or cancellation of such Product, Publisher will provide to Advertiser, upon Advertiser’s request, any username, password or email address maintained and used by Publisher to provide Services solely to Advertiser on applicable third-party Platforms. Except as explicitly set forth in this Agreement, Publisher (i) will have no other responsibility to host, display, store, keep, maintain, or share with Advertiser any Content, User Generated Content, Registration information (including usernames, passwords, emails, or other credentials), Registration Communications, or domain names used in connection with a Product, and (ii) may delete such content following the expiration or cancellation of the last Product Term applicable to such Product or termination of this Agreement.
(a) “Content” means (i) all informational, promotional, advertising or marketing content (x) requested, directed or provided by Advertiser or created, compiled, prepared or provided by Publisher, and (y) used, displayed, posted, published, sent, received or distributed by Advertiser, or by Publisher on behalf of or at the direction of Advertiser, in connection with the Products, including any Photography, Video Content, Posts, offers, deals, promotions, messages or other communications; and (ii) the information provided by Advertiser to Publisher during the process of ordering or using Products, receiving Services or otherwise doing business with Publisher, including personally identifiable information of the business owner or representative authorized to enter into this Agreement on behalf of Advertiser.
(b) Advertiser acknowledges and agrees that, at all times, it is solely responsible for the truthfulness, sufficiency (including ensuring the inclusion of required information, such as license numbers, required disclosures, or affirmative legal notice language), compliance, legality, legitimacy, suitability, reliability, and accuracy of all Content. Advertiser acknowledges that Publisher relies on Advertiser to, and Advertiser represents and warrants that it will, review all Content and immediately provide notice to Publisher, both in accordance with in Section 20 and by calling Publisher at (800) 579-0710, of any Content that is not truthful, sufficient, compliant, legal, legitimate, suitable, reliable or accurate (including that infringes, violates or misappropriates any IP Rights (as defined below)). Publisher will make commercially reasonable efforts to remove, correct, or otherwise comply with Advertiser’s instructions with respect to Content so notified.
(c) Advertiser represents, warrants and covenants that: (i) it owns all rights, title, and interest in and to, or has full and sufficient authority to grant the rights hereunder and use in the manner contemplated by this Agreement, any Content furnished by or on behalf of Advertiser to Publisher (including trademarks and data contained therein), and such use by Publisher or its designees will not infringe, violate or misappropriate any copyright, trademark, right of publicity or any other intellectual property or proprietary rights of any third party (collectively, “IP Rights”) and such Content may be altered or arranged by Publisher in any medium in Publisher’s sole discretion; and (ii) it shall use Content in compliance with all applicable federal, state and local laws, regulations, rules, orders, industry standards and guidelines (collectively, “Applicable Law”), including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act, the Telephone Consumer Protection Act (“TCPA”), the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising and other applicable rules and guides of the FTC and comparable state authorities (“FTC Guides”), the CTIA Messaging Principles and Best Practices, in each case as updated or amended from time to time.
10. Advertiser Property. The parties acknowledge and agree that, as between Advertiser and Publisher, any data, information, content, copyrights, trademarks, trade names, graphics, images, photographs, and other materials licensed to Advertiser by a third party, or created by or owned by Advertiser (collectively, “Advertiser Property”) and all intellectual property rights therein, including Content constituting Advertiser Property, shall remain the property of Advertiser, and Advertiser retains all rights, title, control, and interest to the Advertiser Property, subject to the terms of this Agreement. Advertiser shall provide Publisher with any Advertiser Property reasonably required for Publisher to provide the Products as set forth in the Order Form and applicable Product Terms. Advertiser hereby grants to Publisher a paid-up, royalty-free, nonexclusive, worldwide, irrevocable, right and license to access, use, copy, modify, distribute, publicly display and publish such Advertiser Property as necessary to provide, and fulfill the objectives of, the Products in connection with this Agreement. All use of the Advertiser Property and any rights arising therefrom, and goodwill generated thereby, shall inure solely to the benefit of Advertiser.
11. Ownership; Licenses.
(a) Except for rights expressly granted under this Section 11, other than Advertiser Property, Publisher retains exclusive ownership of all right, title, and interest in and to all tools, software, technology, source code, content, copyrights, trademarks, trade secrets, patents, techniques, methodologies, ideas, concepts, know-how, other proprietary information, generic and business information, and other intellectual property and proprietary rights therein, including all modifications and derivative works thereof, that are owned by and/or was created or developed by, or are licensed to, Publisher, not including Advertiser Property (collectively, the “Publisher Property”). Without limiting the foregoing, Publisher Property shall include all Content and other materials, information and content, including photographs, websites, audio and audiovisual works, graphics, copy, scripts, domain names/URLs, unique design elements created by or paid for by Publisher, narrative text, software, scripts, source code, videos, voiceover, graphics, files, records, sound, business listings, universal resource locators or domain names, template forms or online formats, recommendation request cards, review or testimonial landing pages, and methods of eliciting, arranging, or displaying reviews, testimonials and any other information, content or materials provided as a part of the Products, other than Advertiser Property. Advertiser acknowledges and agrees that Publisher retains all rights, title, control, and interest in and to (including the unlimited right to use) the Publisher Property, and Publisher Property shall be and remain the sole property of Publisher, and Advertiser will have no right, title or interest with respect to the Publisher Property other than those rights and licenses expressly granted under this Agreement.
(b) If Advertiser’s use of Publisher Property is necessary in order for Advertiser to fulfill the objectives of the Products pursuant to, and as contemplated by, this Agreement, Publisher permits Advertiser to access, operate, or use such Publisher Property during each applicable Product Term, solely for such purpose. Without limiting any other restrictions set forth herein, except as expressly authorized hereunder in connection with the Products, Advertiser will not reproduce, disassemble, decompile, decrypt, extract, reverse engineer, modify, sell, share, resell, use, or otherwise exploit any Publisher Property or any other Products, or otherwise attempt to derive the source code of any software provided with the Publisher Property or any algorithm, process or procedure contained within the Publisher Property.
(c) Advertiser understands that there may be limitations contained in agreements with Third-Party Suppliers (as defined below) that limit the use of the third-party materials utilized in materials prepared by Publisher under this Agreement, and Advertiser warrants and covenants that it will use such materials in accordance with such third party limitations. “Third-Party Supplier” means any third party that provides or licenses services, technology, data, content or other materials to Publisher relating to the Products or Publisher’s other activities in connection with this Agreement.
(d) Any information, content or materials submitted by third parties and collected, transmitted or published through or in connection with a Product (“User Generated Content”) becomes the property of Publisher when collected. “User Generated Content” includes, but is not limited to, consumer reviews, testimonials and other feedback (whether collected by Publisher through a Testimonial Page, website, or landing page, or other method; and in any format) and consumer inquiries and leads (such as those submitted by consumers on website or Testimonial Pages or website “contact us” forms).
(e) If Advertiser provides Publisher with any feedback, suggestions, testimonials, reviews, modifications, data, images, text, or other information or content about the Products (collectively, “Feedback”), Advertiser irrevocably assigns to Publisher all right, title and interest in and to the Feedback. In the event such an assignment is invalid for any reason, the Advertiser hereby irrevocably grants to Publisher a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to: (i) use, reproduce, perform, display and distribute the Feedback; and (ii) adapt, modify, re-format and create derivative works of the Feedback for any purpose, and sublicense the foregoing rights to any third party. Advertiser warrants that: (x) Feedback is Advertiser’s original work or Advertiser obtained Feedback in a lawful manner; and (y) Publisher’s and its sublicensees’ exercise of rights under the assignment or license above will not violate any IP Rights. Advertiser agrees to provide Publisher such assistance, at Publisher’s expense, as Publisher might reasonably require to document, perfect or maintain Publisher’s rights in and to Feedback.
(a) Advertiser authorizes Publisher and its Third-Party Suppliers to track and collect data on Advertiser’s behalf, regarding the performance of the Products provided to Advertiser hereunder, including data regarding the volume, type and quality of consumer interactions with the Products and any other analytics associated with the Products (“Performance Data”). As between Advertiser and Publisher, Advertiser shall own the Performance Data. Advertiser hereby grants to Publisher and its Third-Party Suppliers a royalty-free, non-exclusive, irrevocable, perpetual license to use such Performance Data to perform under the Agreement or in any other manner in its sole discretion during and after the Term.
(b) The parties acknowledge that Publisher may access personally identifiable information in connection with rendering the Services on Advertiser’s behalf. For purposes of the Agreement, and notwithstanding anything to the contrary herein, Publisher shall be a service provider or processor or equivalent term, respectively, with regard to any such personal identifiable information, and Advertiser shall be a business or controller or equivalent term, respectively, with regard to such information. Publisher shall have no liability with respect to Advertiser’s obligations under data privacy and security laws and regulations applicable to the Products or processing of data under the Agreement.
13. Use of Products. Advertiser warrants and covenants that it will not use the Products in any manner that: (a) violates any Applicable Law or Platform Terms (as defined below) or advocates or encourages the violation of any Applicable Law or Platform Terms; (b) is directed toward or is harmful to minors; (c) is abusive, defamatory, harassing, hateful, indecent, invasive of another’s privacy, lewd, libelous, obscene, pornographic, slanderous, threatening, violent, vulgar or promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (d) infringes, violates or misappropriates any IP Rights; or (e) is deceptive or misleading. Without limiting the foregoing, Advertiser specifically warrants and covenants that (i) it will use the Products, and conduct all of its activities in connection with use of the Products, in compliance with all Applicable Law, including the CAN-SPAM Act, the TCPA, the FTC Guides and the CTIA Messaging Principles and Best Practices; and (ii) it will comply with the terms and conditions of any licensing or other agreements that govern the use of material licensed or acquired from third parties and contained in any Products or materials or utilized for any Services provided by Publisher in connection with this Agreement (including any Platform Terms).
14. Indemnity. Advertiser acknowledges that Publisher relies on Advertiser’s intimate familiarity with its own business and cannot undertake to verify all Content or the facts and information used by Publisher or Advertiser in connection with the Products, or to monitor the use of Products by Advertiser. Advertiser shall indemnify, hold harmless and defend (upon Publisher’s request), Publisher, its affiliates and its Third-Party Suppliers, and each of their employees, contractors, officers, directors, shareholders and agents (collectively, the “Publisher Indemnitees”) from and against any and all claims, suits, proceedings, investigations, liabilities, losses, damages, settlements, costs or expenses, including reasonable attorneys’ fees and costs, arising out of: (i) Advertiser’s business, products, services and relationships with clients and customers; (ii) Advertiser’s negligence or willful misconduct; (iii) Advertiser’s breach or alleged breach of any provision, covenant, warranty, or representation set forth in this Agreement; (iv) any and all information, content, representations, reports, trademarks, data, materials, releases and other Content used in connection with the Products; (v) any consulting, suggestions, advice or feedback provided by Publisher, including relating to risks or restrictions, whether or not Advertiser effects or otherwise acts on the same; (vi) any unlawful or unethical use of the Products; or (vii) any bodily injury or loss of property claimed to result from any act or omission of Advertiser.
(a) Advertiser’s purchase and use of the Products, and any reliance by Advertiser upon the Products, including any action taken by Advertiser because of such use or reliance, is at Advertiser’s sole risk. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE PRODUCTS AND any other services, SOFTWARE, information, CONTENT OR MATERIALS provided by PUBLISHER under THIS Agreement are provided “as is” and “as available”, WITH ALL FAULTS, AND without REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, PUBLISHER EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES REGARDING THE PRODUCTS AND SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, OR ORAL OR WRITTEN STATEMENTS OF SOCIO OR ITS REPRESENTATIVES, INCLUDING ANY WARRANTIES: (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (II) CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, COMPLETENESS OR USEFULNESS OF THE PRODUCTS, OR THAT THE PRODUCTS WILL MEET ADVERTISER’S OR ANY THIRD PARTY’S REQUIREMENTS OR SATISFACTION; (III) THAT ADVERTISER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE PRODUCTS WILL BE SECURE OR UNINTERRUPTED; OR (IV) THAT THE PRODUCTS WILL BE FREE OF ERRORS, DEFECTS, OR VIRUSES.
(c) ADVERTISER ACKNOWLEDGES THAT PUBLISHER USES, OR MAY USE, THIRD PARTY SUPPLIERS TO PROVIDE HARDWARE, SOFTWARE, NETWORKING AND RELATED TECHNOLOGY REQUIRED TO RENDER THE PRODUCTS AND FOR THE AVOIDANCE OF DOUBT THAT PUBLISHER ALSO MAKES NO WARRANTIES WITH RESPECT TO SUCH THIRD-PARTY MATERIALS OR SERVICES AND THAT PUBLISHER SHALL NOT BE RESPONSIBLE FOR ANY FAILURES ATTRIBUTABLE TO SUCH THIRD-PARTY MATERIALS OR SERVICES, INCLUDING IN CONNECTION WITH PLATFORM CHANGES.
(d) For the avoidance of doubt, PUBLISHER WILL NOT be bound by, and Advertiser acknowledges that Advertiser is not relying on: (I) any representation or warranty concerning revenue, profit, return on investment, or results to be generated from Publisher’s Products; (II) any representation or warranty regarding either the number of people or households who will receive, access, or view the Products; (III) any representation concerning the quantity or quality of calls, visits, or online interactions with or leads generated by the Products; (IV) any prior course of dealing; or (V) the results of other business’s experience with the Products that Publisher may have shared with Advertiser. ADVERTISER ACKNOWLEDGES AND AGREES THAT THE ENTIRE RISK ARISING OUT OF THE USE OF THE PRODUCTS, INCLUDING ANY SOFTWARE, CONTENT, MATERIALS OR INFORMATION TRANSMITTED, ACCESSED OR OTHERWISE OBTAINED THROUGH ADVERTISER’S USE OF THE SERVICE, REMAINS WITH ADVERTISER TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. Limitations of Liability.
(a) Any claim arising out of an error, omission, or other harm related to a Product or the Services must be made in writing by U.S. Certified Mail (return receipt requested) to Publisher within three months of the first occurrence of such error or other harm, or such claim shall be deemed waived.
(b) IN NO EVENT SHALL PUBLISHER BE LIABLE TO ADVERTISER FOR ANY INDIRECT (INCLUDING LOSS OF PROFITS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS), INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR RELATING TO THE PERFORMANCE, BREACH, OR TERMINATION OF THIS AGREEMENT, WHETHER SUCH DAMAGE OR LOSS IS FORESEEABLE OR NOT, WHETHER PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR NOT, AND WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE. IN NO EVENT SHALL PUBLISHER’S LIABILITY ARISING OUT OF THE AGREEMENT EXCEED THE FEES PAID TO PUBLISHER BY ADVERTISER FOR THE PARTICULAR PRODUCT OUT OF WHICH A CLAIM FOR LIABILITY AROSE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE, EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADVERTISER HEREBY WAIVES, AND AGREES TO WAIVE, ANY CLAIM FOR DAMAGES TO THE EXTENT THAT SUCH DAMAGES EXCEED THIS AMOUNT.
(c) IN NO EVENT SHALL PUBLISHER BE LIABLE TO ADVERTISER OR ANY OTHER PERSON FOR ANY LOSSES OR CLAIMS ARISING OUT OF OR RELATING TO THE PERFORMANCE OR USE OF ADVERTISER’S GOODS OR SERVICES OR ANY ACT OR OMISSION OF ADVERTISER OR ANY OF ITS EMPLOYEES OR CONTRACTORS, INCLUDING CLAIMS RELATING TO FALSE ADVERTISING, PERSONAL OR BODILY INJURIES, ILLNESSES, DAMAGES OR DEATH.
(d) IN NO EVENT SHALL PUBLISHER BE LIABLE TO ADVERTISER OR ANY OTHER PERSON FOR ANY FAILURE, LOSSES OR CLAIMS ARISING OUT OF OR RELATING TO PLATFORM CHANGES.
(e) THE LIMITATIONS OF LIABILITY DESCRIBED IN SECTIONS 16(a) THROUGH 16(d) ARE INTENDED BY ADVERTISER TO APPLY TO ANY CLAIM THAT ADVERTISER HAS AGAINST PUBLISHER, together with PUBLISHER’S OFFICERS, DIRECTORS, EMPLOYEES, or contractors OR its THIRD-PARTY SUPPLIERS OR THE LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
(f) PUBLISHER’S ACCEPTANCE OF THIS AGREEMENT AND THE RATES CHARGED FOR THE PRODUCTS ARE BASED UPON THE LIMITATIONS OF THE PUBLISHER’S LIABILITY AS SET FORTH HEREIN. At any point prior to entering into this Agreement, Advertiser may negotiate to pay additional charges in lieu of this limitation of liability by contacting Publisher’s Customer Service team at (800) 579-0710 to enter into an alternative pricing structure and agreement with Publisher providing otherwise. Any such agreement will be based on Publisher’s assessment of risk factors as determined in the sole discretion of Publisher, and may in Publisher’s discretion require additional warranties or requirements of Advertiser. Such an agreement must be in writing, and signed physically by an officer of Publisher and an authorized representative of Advertiser.
17. Collection Actions; Arbitration; Attorneys’ Fees; Class Action Waiver; Venue.
(a) All Disputes (as defined below) shall be resolved pursuant to this Section 17 and governed by the laws of the State of Illinois (notwithstanding its conflicts of law rules or principles). Advertiser and Publisher agree that the court of proper and exclusive jurisdiction to resolve any action initiated by Publisher to collect amounts due under this Agreement shall be the 16th Judicial Circuit Court in DeKalb County, Illinois.
(b) Except for such actions initiated by Publisher to collect amounts due under this Agreement, ANY CLAIM, CONTROVERSY, OR DISPUTE BETWEEN PUBLISHER AND ADVERTISER ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 17 TO ARBITRATE, ADVERTISER AND PUBLISHER ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 17). The provisions of this Section 17 shall constitute Advertiser’s and Publisher’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration shall be administered by the Judicial Arbitration & Mediation Services (“JAMS”) and shall be heard by a single arbitrator, pursuant to the Arbitration Rules and Procedures then in effect (the “JAMS Rules”), except as modified by this Section 17. The arbitrator will apply and be bound by this Agreement, apply Applicable Law and the facts, and issue a reasoned award. Publisher and Advertiser also agree that the arbitrator may not award multiple or punitive damages.
(c) To begin an arbitration proceeding, a party must comply with the limitations of liability set forth in Section 16 and submit the Dispute by making a demand for arbitration, as detailed at https://www.jamsadr.com/, and simultaneously send a copy of the completed demand to the notice address of the other party under Section 20 (and if to Publisher, to: American Marketing & Publishing, LLC, 915 E. Lincoln Hwy, DeKalb, IL 60115, Attn: Chief Executive Officer. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. Publisher will reimburse those fees for Disputes totaling less than $10,000 if Advertiser is the prevailing party in such arbitration. Publisher will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Dispute initiated by Advertiser is frivolous. The arbitration will be conducted based upon written submissions, unless Advertiser requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines that an in-person hearing is necessary, the hearing will proceed in DeKalb County, Illinois, unless the arbitrator determines or Publisher agrees that the matter should proceed in the county of Advertiser’s principal place of business.
(d) EACH PARTY AGREES THAT IT SHALL BRING ANY DISPUTE AGAINST THE OTHER PARTY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, EACH PARTY AGREES THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS, AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
(e) If for any reason a Dispute proceeds in court, Advertiser and Publisher (i) agree that any such Dispute may only be instituted in a state or federal court in DeKalb County, Illinois and waive any defenses or objections based on the jurisdiction, venue, or convenience of this exclusive venue; (ii) irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) agree that the Federal Arbitration Act, the JAMS Rules, applicable federal law and the laws of the State of Illinois, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY. In such a proceeding, Advertiser agrees to pay Publisher’s reasonable attorney’s fees and reasonable costs and expenses, including any costs of court or collection, incurred in obtaining or collecting on a judgement from Advertiser, enforcing Publisher’s rights, or successfully resolving Disputes.
(f) Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.
18. Publicity. Notwithstanding anything to the contrary under the Agreement, Publisher may make disclosures relating to this Agreement. Advertiser hereby grants to Publisher a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable right and license to access, use, copy, distribute, publicly display and publish Advertiser’s name, logo, likeness, and testimonials regarding, or endorsements of, Publisher as part of Publisher’s advertisements, trainings, marketing, press releases and other publicity efforts, including in connection with Feedback. Advertiser shall not make any use, including in advertising, publicity, promotional or marketing materials, domain names, social media accounts or otherwise, of Publisher’s name or trademarks.
19. Force Majeure. In the event of nonperformance or delay of Publisher’s obligations under this Agreement, in whole or in part, in connection with a Force Majeure Event (as defined below), such failure will be excused and not be treated as a breach of the Agreement, provided that Publisher promptly informs Advertiser of the reason or circumstances. The term “Force Majeure Event” shall mean (a) an act of war or terrorism, riot, civil disorder, public violence, demonstration, or rebellion, (b) pandemic, epidemic, or other public health emergency, (c) fire, flood, earthquake, natural disaster or other acts of God or state of emergency, (d) a strike, lockout, similar labor dispute or labor shortage, (e) failure of telecommunications systems or other utilities (including the Internet or third-party wireless networks) or mechanical failure, (f) modification of policies by public or private utilities or the act, order, embargo or other restriction of any government or governmental authority that causes the essential objectives of a Product to become unachievable, or (g) other factors, forces or circumstances outside of Publisher’s reasonable control affecting the Product.
20. Notices. Except as otherwise expressly stated in this Agreement, any notice required to be made or given hereunder from Advertiser to Publisher shall be in writing and shall be deemed to have been made or given when any such notice is delivered by certified or registered mail, return receipt requested, (a) to Publisher at American Marketing & Publishing, LLC, 915 E. Lincoln Hwy, DeKalb, IL 60115, Attn: Chief Operating Officer, or (b) to Advertiser at Advertiser’s address set forth on any Order Form, or by email to an email address provided by Advertiser to Publisher on the Order Form, in the course of contracting for services, or in the course of business dealings. All notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; two days after it is sent, if sent by first class mail; and upon receipt, if sent by certified or registered mail, return receipt requested.
21. Communications. Advertiser consents to receiving telephonic or electronic correspondence and other communications from Publisher at any email address or at any telephone number, including personal or business mobile phone numbers provided at any point to Publisher by Advertiser, via phone call, facsimile, email or text, including via auto-dialer or recorded message. To opt out of such communications, Advertiser may opt-out or unsubscribe from further texts by texting “STOP” in reply to any such text message or in the case of emails, by following opt-out instructions in the email or by contacting Publisher’s customer service team at (800) 579-0710. Advertiser agrees that telephone conversations between Advertiser and Publisher may be monitored and/or recorded by Publisher.
22. Continuing Use or Purchases without Additional Agreement Documentation. In any of the following circumstances, the parties expressly intend that the use of the Products by Advertiser and the provision of Services by Publisher shall be subject to these General Terms and applicable Product Terms then posted and available at ampcorporate.com/legal/AdvertisingGeneralTerms&Conditions: (a) in the event that Advertiser continues to use any Product or Content related to a Product provided by Publisher after the expiration or cancellation of the Product Term (or expiration or termination of this Agreement) without paying; (b) if Advertiser orders and pays Publisher in whole or in part for Products described in this Agreement but does not enter into an Order Form (or Publisher fails to record the order or fails to return an accepted Order Form to Advertiser but nonetheless accepts payment or performs services in rendering the Product); or (c) in any circumstances wherein the records documenting or memorializing Advertiser’s purchase and assent to this Agreement are lost, destroyed, or become inaccessible.
(a) The Agreement constitutes the entire agreement between the parties, and expressly supersedes all prior and contemporaneous agreements, understandings, inducements or conditions, express or implied, oral or written, with regard to the Products reflected on the Order Form (except Advertiser’s oral agreement to purchase the Products via recorded telephone call(s), if applicable). There are no other oral or written understandings, terms or conditions and neither party has relied upon any representation, express or implied, not contained in this Agreement.
(b) The parties are independent contractors. Nothing contained in the Agreement shall create any partnership or joint venture between Publisher and Advertiser. There are no third-party beneficiaries of this Agreement. This Agreement and the rights and obligations hereunder may not be assigned, transferred or delegated by Advertiser without Publisher’s prior written consent. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns.
(c) Publisher’s remedies specified herein shall be cumulative and additional to those allowed by law. A waiver by Publisher of any breach hereof, or a failure to enforce any provision hereof, shall not constitute waiver of any other breach of the same or other provision or of any obligations of Advertiser. If any provision of the Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby, and, if legally permitted, such provision will be replaced with an enforceable provision that as nearly as possible effects the parties’ intent.
(d) The headings preceding the text of the sections of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning of this Agreement. Any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise stated. All references to dollars (including via the symbol “$”) shall refer to the currency United States dollars. The term “Product” in this Agreement shall in all cases include the Services provided by Publisher in connection with the applicable products, and any separate reference to Publisher’s “Services” in this Agreement shall not affect such interpretation.
(e) This Agreement may be executed or agreed to in any number of counterparts and in more than one medium for the convenience of Advertiser and Publisher, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
HomePages® Directories Advertising Product Terms
If the Order Form includes the purchase of advertising in a HomePages® Directory, the following additional terms and conditions shall apply and are incorporated into and form a part of the Agreement.
1.Product. HomePages® Directories (“directories”) are printed community-specific telephone directories and informational guides featuring certain businesses and other frequently referenced organizations in a particular community or a defined series of communities in close geographic proximity. Publisher reserves the right, in its sole discretion and without notice to Advertiser, to modify the features of any directory, including to include or exclude content that appeared in previous editions, to add or diminish community information, to eliminate residential white pages listings, to change the geographic coverage of any directory edition, to add new advertising features or options, to offer advertising items only to some but not to all businesses in a community, and to list advertisers or free business listings in any manner and under any system of classification that Publisher determines in its sole discretion, so long as any such changes to a directory continue to maintain the functional equivalent of a community specific telephone directory and informational guide to local businesses and other frequently referenced organizations. Although Publisher promises not to distribute an updated edition of any directory title for approximately one year after the date of that edition’s most recent distribution, no specific distribution date for any particular publication is promised, and Publisher may extend or delay distribution dates without notice to Advertiser.
2. Directory Distribution. Publisher will use reasonable efforts to thoroughly distribute the directories in which Advertiser’s advertising items appear through the U.S. Post Office or by door-to-door residential and business delivery. Advertiser acknowledges not all households or businesses addressed within a directory’s designated geographical area will receive a directory. Advertiser understands and agrees that the precise print run for any directory may vary within a range of eight percent above or below the projected distribution referenced in Publishers sales literature and that print runs are adjusted annually by Publisher.
3. Advertising Items. Publisher will produce and print the advertising items described on the Order Form for the directory edition(s) shown on that form. Advertiser represents and warrants that any listing information appearing on the Order Form is accurate and acceptable for printing, unless Advertiser notifies Publisher in writing of an error or inaccuracy during the proofing process. Other than special placements explicitly contracted for on the Order Form or in a typed addendum prepared and provided by the Publisher, authorized by the Advertiser, and accepted by Publisher, no specific display position for advertising is guaranteed. Advertiser acknowledges that Publisher does not and will not guarantee exclusive business category advertising opportunities nor does Publisher guarantee the presence or absence of competitor advertising items under any business category.
4. Proofing. Publisher shall send Advertiser a proofing copy (“Proof”) of the listing and/or display advertisement described on the Order Form at the fax number, U.S. Postal address or email address on the Order Form at least five days prior to the date printing of the directory is to begin for Advertiser’s review. If Advertiser deems any changes to this Proof necessary, Advertiser shall submit such requested revisions to Publisher within two days of receipt of the Proof; otherwise, such Proof will be deemed accepted and approved by Advertiser. In the event that any subsequent rounds of proofing are provided, in the sole discretion of Publisher, Advertiser agrees to comply with Publisher’s deadlines and any other instructions that accompany the delivery of such a subsequent Proof, which may include the requirement that any revisions must be submitted to Publisher more quickly than within two days of receipt of such a Proof, (and otherwise the proof will be deemed accepted and approved by Advertiser).
OPTIMA™ Product Terms
If the Order Form includes the purchase of an OPTIMA™ Product, the following additional terms and conditions shall apply and are incorporated into and form a part of the Agreement.
1.Product. The objective of an OPTIMA™ Product is to assist Advertiser with presenting itself more effectively online. The OPTIMA™ Product consists of listings presence management and other services, as described in this Schedule B (each, a “Package” for purposes of this Schedule B, and the Package selected on the Order Form constitutes the applicable “Product” for purposes of this Agreement):
(a) “OPTIMA™ Baseline Visibility” consists of (i) submission, verification and management of business listing information and other Content with respect to up to five Platforms selected by Publisher or Advertiser (from a list provided by Publisher), and (ii) development and hosting of a mobile responsive Testimonial Page using Advertiser’s Content in one of several templated design options.
(b) “OPTIMA™ Comprehensive Visibility & Reputation Management” consists of (i) submission, verification, management and monitoring of business listing information and other Content with respect to up to five Platforms selected by Publisher or Advertiser (from a list provided by Publisher), (ii) development and hosting of a mobile responsive Testimonial Page using Advertiser’s Content in one of several templated design options, and (iii) reputation management assistance, including guidance, advice, and certain business tools intended to help Advertiser aggregate existing testimonials and generate additional feedback from Advertiser’s customers.
(c) “OPTIMA™ Premium Visibility & Reputation Management” consists of all Services described in the Comprehensive Package, above, but with listings presence management provided at up to eight Platforms, additional more sophisticated design template options for the Testimonial Page, and the addition of a news and announcements section on the Testimonial Page.
(d) “OPTIMA™ Platinum Program“ consists of all of the services described in the Premium Package above, but with a rich content website template featuring deeper narrative content and other attractive design or navigation elements, the +Social features described below, including a total of up to 20 AMP-Assisted Posts annually.
(e) “+Social” OPTIMA™ provides a social media presence management add-on to any of the Baseline, Comprehensive, or Premium Packages consisting of the creation and management of a Facebook business page and includes assistance from Publisher in periodically making Posts across one or more sites, including on Facebook, in the form of Google Posts, Posts, and/or to update the news and announcements section of Advertiser’s Testimonial Page up to eight times per year.
2. Listings Presence Management Services.
(a) Depending on which Package is ordered, Publisher will assist Advertiser in establishing, claiming, or verifying its online business listing or business profile on certain Platforms by compiling relevant Advertiser information, submitting it to each Platform in a manner intended to establish the veracity and the accuracy of the information shown by that Platform in response to consumer search queries. Publisher will update Advertiser’s information such as hours, products, services, locations, and business description on a periodic basis as directed by Advertiser in an attempt to keep the Content current. In addition, depending on which Package is ordered and what Platforms are selected, Publisher will provide Posts up to four times per year on Advertiser’s GMB Page or in the news and announcements feature of their Testimonial Page to share special announcements, time sensitive updates, or deals. Subject to the other terms of this Agreement, in the event Publisher becomes aware that any Advertiser listings or Content is rejected, is not made sufficiently visible, or appears erroneously, inaccurately, or unattractively, Publisher will make reasonable efforts to attempt to resolve the situation on behalf of Advertiser.
(b) Advertiser acknowledges and agrees that: (i) the listings presence management Services depend on the active, prompt and responsive engagement and cooperation of Advertiser personnel, which may involve coordinating with Publisher in connection with online verification processes; (ii) Platforms initially selected by Advertiser or Publisher for listings presence management may be unresponsive to Publisher’s efforts to establish, claim, verify, or update, change, remove, or otherwise manage Advertiser’s listings or other Content and the specific Platforms where this Service is initially provided by Publisher may be changed, expanded, or made unavailable for service in the sole discretion of Publisher; (iii) any Platform may reject Advertiser listings or other Content or fail to cooperate with Publisher or Advertiser in accepting, changing, updating, and/or displaying to the public Advertiser’s content; (iv) Publisher may provide listings presence management assistance at additional Platforms not initially selected by Advertiser or Publisher, in Publisher’s sole discretion, if Publisher reasonably believes it would assist Advertiser in developing a better online presence or visibility; (v) Advertiser requests to Publisher to update or change business profile or listing information will often require a substantial period of time for Publisher to effectuate; (vi) Publisher shall have no liability for any change of Platforms where listings presence management service is provided or permitted; and (vii) Publisher shall have no liability with respect to any Advertiser listings or Content, including listings or Content that is rejected, delayed, or not made sufficiently visible, or appears erroneously, inaccurately, or unattractively.
(c) Advertiser further acknowledges and agrees that (i) Publisher has no special relationship with third-party Platforms, and no control over or responsibility for how or whether such third-party Platforms use or display Content provided by Publisher; and (ii) the appearance of any third-party trademarks on any Publisher marketing materials or websites is intended only to describe some of the recognizable Platforms where listings presence management may be important, and does not in any way imply any connection, approval, special arrangement or other relationship of any kind with such third-party Platforms.
3. Testimonial Pages.
(a) Publisher will produce a website (“Testimonial Page”) to describe and promote Advertiser’s business. The Testimonial Page provided by Publisher will be designed in a templated manner and will be mobile responsive, meaning that it will display properly on most mobile devices and tablets and on most desktop and laptop computers. The Testimonial Pages may include lead capture functionality, feedback and testimonial capture functionality, Advertiser contact information, a description of Advertiser, map integration, Advertiser photos or Publisher’s licensed or owned stock imagery, Advertiser’s logo, and/or other Content. If Advertiser has ordered a Comprehensive or Premium Package, the Testimonial Page will feature for marketing purposes positive testimonials of Advertiser that have been left on the Testimonial Page and those positive testimonials that Publisher has been able to identify, compile, and present (with attribution to the originating site where they were first published). Publisher will collaborate with Advertiser to identify an acceptable universal resource locator (“URL”) at which to display the Testimonial Page Content, to be procured at Publisher’s expense. If Advertiser has ordered a Baseline or Comprehensive Package, Advertiser may choose between three standard template designs that Publisher will customize with Advertiser Content. If Advertiser has ordered a Premium Package, Publisher offers at least seven template options, including several that include a news and updates feature that permits Advertiser to share updates on the landing page of the Testimonial Page. Publisher will respond to Advertiser requests to periodically update Testimonial Page Content within a reasonable timeframe and will provide an opportunity to update Testimonial Page Content at least quarterly. Advertiser acknowledges and agrees that the Testimonial Pages are not fully custom websites, but instead template website forms with certain fixed design elements that cannot be changed notwithstanding the general ability to customize the site with Advertiser’s Content
(b) Advertiser acknowledges and agrees that the URL is owned by Publisher and constitutes Publisher Property. Advertiser shall ensure that the domain name used to host the Testimonial Page and Publisher’s use thereof as contemplated under this Agreement does not infringe or violate any IP Rights, and Advertiser is solely responsible for conducting trademark clearance for such domain name. Provided Advertiser has paid Publisher in full under this Agreement and any other agreement(s) between Publisher and Advertiser, then upon written request and the furnishing and execution of appropriate forms acceptable to Publisher by Advertiser, during any Product Term with respect to the OPTIMA™ Product and for a period of 10 business days after expiration or cancellation of the Product, in consideration for payment of a one-time fee of $175 by Advertiser, Publisher agrees to assign its rights to Advertiser in the domain name used to host the Testimonial Page, and assist Advertiser to the extent necessary to secure such an assignment by reasonably cooperating with Advertiser to change the registrant associated with such domain name. Otherwise, for the avoidance of doubt, after the expiration or cancellation of the last Product Term with respect to the applicable OPTIMA™ Product, Publisher may take any action with respect to the URL, or use the URL for any purpose, in its sole discretion, including return the URL to the registrar it was purchased from or redirect it to a different website, and the Content comprising Advertiser’s Testimonial Page, including testimonials (if any), may be permanently lost.
4. Reputation Management Assistance.
(a) If Advertiser has ordered a Comprehensive or Premium Package, Publisher will provide reputation management assistance, as described herein, including (i) monitoring the public reviews of Advertiser that are posted at 15 or more public review sites, (ii) alerting Advertiser to the existence and content of each such review detected, with attribution to the originating source of the review, and (iii) compiling the positive examples of such reviews to be used as testimonials, with attribution to the originating source of the review. As part of the Comprehensive or Premium Package, Publisher will also (w) send to Advertiser 100 custom-content review request cards to invite customers to leave genuine reviews of Advertiser’s business, (x) provide Advertiser with a customized digital review link landing page that navigate to one or more third-party review sites in order to facilitate feedback about customers’ experiences with Advertiser, (y) provide a review response interface to enable Advertiser to respond to customer reviews and post select responses on the Testimonial Page on Advertiser’s behalf, or (z) provide advice to Advertiser to assist Advertiser in responding to reviews or may post review responses on behalf of Advertiser.
(b) Advertiser acknowledges and agrees that Publisher will not monitor all public review sites, may not detect all reviews regarding Advertiser at the review sites it does monitor, may add to, diminish, or change the review sites it monitors during the Product Term, may modify the frequency of monitoring, alerts, and/or delivery of detected reviews to Advertiser in its sole discretion, and/or may require Advertiser’s assistance or Platform credentials in order to provide these services at some review sites. ANY RESPONSES TO, OR PUBLICATION OR USE OF, REVIEWS (INCLUDING COMPILED TESTIMONIALS) BY ADVERTISER, INCLUDING IN A TESTIMONIAL PAGE OR OTHER WEBSITE, OR IN OTHER MARKETING EFFORTS OF ADVERTISER, IS AT ADVERTISER’S SOLE RISK.
(c) Advertiser shall ensure, and shall be solely responsible for ensuring, that any and all activities under this Agreement in connection with reviews and testimonials fully comply with Applicable Law and all Platform Terms of third-party review sites implicated by such activities (including Publisher’s reputation management assistance). Without limiting the foregoing, Advertiser warrants and covenants that it shall not (i) represent or otherwise imply that testimonials are anything other than marketing materials or are representative of customer ratings or reviews, and it will disclose that such testimonials do not comprise all customer reviews of Advertiser and are not necessarily representative of such reviews; (ii) offer compensation, gifts, products or services or any other value or consideration to entice customers or other third parties to submit or post reviews; (iii) unlawfully solicit customer reviews, or otherwise solicit reviews in a manner that may influence the honest beliefs or experiences of reviewers; (iv) knowingly or intentionally solicit reviews from anyone who has not had a first-hand experience as a customer of Advertiser. For the avoidance of doubt, Publisher shall not be responsible for any review content, whether positive or negative. Advertiser acknowledges that all review and testimonial content must be attributed to the originating site and contain a link or citation to the source of the review or testimonial.
5. +Social Package.
(a) If Advertiser has ordered a +Social Package, Publisher will assist and advise Advertiser in developing, maintaining, and/or managing a more engaged audience of customers and prospective customers through social media. On behalf of Advertiser, Publisher will either (i) create an official business Facebook page for the Advertiser that is connected to or affiliated with an existing owner’s Facebook account (assisting the owner in creating a personal Facebook page if needed), or (ii) provide assistance to Advertiser to update the Advertiser’s Content on its existing page and to improve the quality, completeness, accuracy and/or attractiveness of the page. Notwithstanding the foregoing, Advertiser acknowledges and agrees that the objective of the +Social Package is not to assist Advertiser in using all of the available functionality of a Facebook business page, but rather to help establish a viable social media presence for Advertiser, and Advertiser may make changes to the specific Platform(s) used in connection with the Services as Publisher deems necessary or desirable in its sole discretion, including in connection with Platform Changes of Facebook.
(b) In addition to including Advertiser-provided information such as hours, contact information, services description, classifications, and images, Publisher may help Advertiser prepare, select, or include an appropriate page template, a narrative business description, a business story, a call to action button, pictures, and/or a first post to be pinned to the page as necessary to create or improve a basic Facebook business page presence.
(c) Publisher will also assist Advertiser in maintaining and updating the Content on Advertiser’s Facebook business page as requested by the Advertiser on a quarterly basis, or more frequently to the extent that such requested changes relate to Advertiser’s address, phone number, public email address, website, hours of operation, primary business category or geographies served.
(d) Publisher will prepare and post on behalf of Advertiser up to eight Posts annually in connection with the purchase of a +Social Package for Advertiser’s Facebook business page, Google GMB Page, and, if Advertiser has ordered the Premium and +Social Packages, to the news and announcements section of Advertiser’s Testimonial Page website. During any Product Term for a +Social Package, Advertiser may purchase additional such Posts subject to the General Terms and Schedule C. In the event that any of the eight Posts that are a part of the +Social Package are not utilized during the then current term of the +Social Package, they will not carry over or become credited to a future term of service, and in the case of these Posts or any subsequently or contemporaneously purchased AMP Assisted Posts, no refund or credit will be given for unutilized Posts at the expiration of a of a term, under any circumstances.
(e) Advertiser acknowledges and agrees that the +Social Package Services depend on the active, prompt and responsive engagement and cooperation of Advertiser personnel, which may include taking all steps necessary to create a personal Facebook page, and completing steps to credential or authenticate Publisher through an app or other means to manage Advertiser’s Content on its Facebook business page or other social media sites.
6. Upgrades and Downgrades. During a Product Term, Advertiser may order a higher-service, more expensive Package (an “Upgrade”) at any time. In the case of an Upgrade prior to the end of a Minimum Term, the price of the Upgrade may be prorated to reflect the remaining months left in the existing Minimum Term for Advertiser’s existing Package, and in such a case, either the Product Term for the Upgrade shall be subject to renewal on the same date as the original Package or a new Minimum Term shall be established and agreed to by Advertiser and Publisher. Advertiser may order any of the lower-service, less expensive Packages (a “Downgrade”) effective at the end of the then-current Product Term at any time by providing Publisher notice of such Downgrade at least five business days prior to the end of such Product Term. Any Downgrade will establish a new Minimum Term that begins at the expiration of the then-current Product Term. Upgrades and Downgrades may be made by executing, accepting or agreeing to a new Order Form accepted by Publisher as described in Section 1(a) of the General Terms.
7. Continuing Obligations. Upon the expiration or cancellation of the last Product Term with respect to the applicable OPTIMA™ Product, Publisher will make reasonable efforts, in Publisher’s sole discretion, during the 90 days after expiration of the Product Term, to remove from Platforms the Content that Publisher aggregated, submitted, or managed in connection with the performance of listings presence management Services on behalf of Advertiser, to the extent that Publisher in its sole discretion regards such Content to be subjective, seasonal, or at risk of becoming outdated or inaccurate over time, and so as to permit such listings to be managed without Product related Content. During this data remediation period, Publisher will not remove name, address, phone number, hours of operation or primary business classification Content, but may, in its sole discretion, remove Content such as business description, services, products, brands, slogan, specialties, imagery, certifications, associations, and payment methods.
AMP-Assisted Posts Package Product Terms
If the Order Form includes the purchase of an AMP-Assisted Posts Package, the following additional terms and conditions shall apply and are incorporated into and form a part of the Agreement.
1. Product. The AMP-Assisted Posts Package is made available to Advertiser only as an add-on to a purchased OPTIMA™ Product and provides the option to purchase additional Posts as an add-on to any of the Baseline, Comprehensive, Premium, Platinum, or +Social Packages. The AMP-Assisted Posts Package is intended to assist Advertiser in sharing information and updates across various communication channels in a consistent, efficient, and convenient manner. Publisher provides an AMP-Assisted Posts Package to assist Advertiser in sending or posting Posts to one or more messaging Platforms (“Messaging Platforms”), which may include Advertiser’s Testimonial Page, Google Posts on Advertiser’s GMB Page, or Posts on Advertiser’s Facebook business page (depending on the Package ordered). An AMP-Assisted Posts Package may be purchased in packages of 12 (“Regular Updates” product), 25 (“Steady Messaging” product), 50 (“Consistent Awareness”), or 100 (“Constant Communication”) Posts, and does not automatically renew.
(a) Posts may include notifications, news, alerts, announcements, updates, event information, special offers or other promotions directed to adult consumers who might follow Advertiser or find the Posts when browsing or searching online. Each Post (whether published to one or multiple Messaging Platforms) counts as a single Post. The maximum number of photos that Publisher will include in a single Post is five; in the event a Post contains more than five photos, it shall be characterized as multiple Posts depending on the number of photos depicted. To the extent that Advertiser maintains access to a Messaging Platform and creates or publishes Posts without the assistance of Publisher, such posting activity will not reduce the number of Posts available to Advertiser in an AMP-Assisted Posts Package. Publisher will use reasonable efforts to track the number of Posts remaining in a particular AMP-Assisted Posts Package, and will share this with Advertiser upon request. The formatting, characteristics, or display of Posts may vary across Messaging Platforms.
(b) Advertiser acknowledges and agrees that: (i) the rules and requirements for Posts, or functionality or characteristics of Posts, or requirements or limitations for posting by a party other than Advertiser (such as Publisher) at Messaging Platforms change regularly, and may be temporarily or permanently suspended (and any such circumstances constitute a “Platform Change”, as defined in the General Terms); and (ii) any Posts purchased as part of the AMP-Assisted Posts Package but not used during the period that Advertiser has an OPTIMA™ Product with an unexpired applicable Product Term will be automatically forfeited by Advertiser, without availability for refund or any other credit.
(c) For the avoidance of doubt, Advertiser shall be solely responsible for ensuring the content of Posts are fully compliant with Applicable Law and Platform Terms.
CloseBy® Text Marketing Product Terms
If the Order Form includes the purchase of CloseBy® Text Marketing Services, the following additional terms and conditions shall apply and are incorporated into and form a part of the Agreement:
(a) Publisher owns or leases certain web-hosted or cloud based software and hardware systems and bandwidth (the “CloseBy® Platform” or “CloseBy®”) designed to facilitate Advertiser’s text message marketing initiatives, which Advertiser may access via its password-protected account. The CloseBy® Platform enables Advertiser to develop a list of consumers who have affirmatively consented and opted-in to receive text messages from Advertiser (“Subscribers”) and facilitates for Advertiser the removal of the mobile number associated with a Subscriber who has opted-out or otherwise asked to be removed from Advertiser’s list of Subscribers. The CloseBy® Platform includes a message portal to enable Advertiser to create messaging Content and send commercial messages, updates, special offers, or other notifications to Subscribers via Short Message Service and/or 10 Digit Long Code Service to the appropriate mobile operators, and includes features that enable Advertiser to manage lists of Subscribers or messaging to them.
(b) Publisher will assign Advertiser a unique keyword on a shared shortcode, and/or a long code number and keyword or keywords for each Advertiser location, or may assign Advertiser a dedicated shortcode and multiple keywords, that may in any such case be promoted by Advertiser and consumers may use this keyword on a shared shortcode, dedicated ten digit long code number, or dedicated shortcode to affirmatively opt-in to receive text messages sent by Advertiser to Subscribers. The CloseBy® Platform includes a limited quantity of customizable text program promotional materials (“Promotional Material”) in the form of counter displays, table-top displays or stickers which Advertiser may use for its text message marketing initiatives. Publisher will provide Advertiser with Promotional Material when Advertiser first orders CloseBy® Text Marketing for a Minimum Term, or renews CloseBy® Text Marketing for a subsequent Minimum Term, or when Advertiser transitions from Shared Short Code Messaging to 10 Digit Long Code Messaging.
(c) Publisher offers four CloseBy® Text Marketing Product Options:
If Advertiser has ordered the VIP CloseBy® Text Marketing Product (“VIP Text”), the Minimum Term is six months beginning on the Acceptance Date. VIP Text provides Advertiser with text messaging to an unlimited number of Subscribers for Advertiser’s text list, to promote one location of Advertiser’s business. VIP Text includes up to 50,000 messages sent in connection with Advertiser’s utilization of the CloseBy® Platform during the Minimum Term, and one vanity keyword.
If Advertiser has ordered the Premium CloseBy® Text Marketing Product (“Premium Text”), the Minimum Term is 12 months beginning on the Acceptance Date. Premium Text provides Advertiser with text messaging to an unlimited number of Subscribers for Advertiser’s text list, to promote one location of Advertiser’s business. Premium Text includes up to 100,000 messages sent in connection with Advertiser’s utilization of the CloseBy® Platform during the Minimum Term, three vanity keywords, the capacity to create multiple lists and to segment messaging to different Subscribers, and access to enhanced messaging features, including a “Birthday Club” functionality.
If Advertiser has ordered the Enterprise CloseBy® Text Marketing Product (“Enterprise Text”), the Minimum Term of Service is 12 months beginning on the Acceptance Date. Enterprise Text provides Advertiser with text messaging to an unlimited number of Subscribers for Advertiser’s text list, to more than one of Advertiser’s business locations. Enterprise Text includes up to 150,000 messages sent in connection with Advertiser’s utilization of the CloseBy® Platform during the Minimum Term, three vanity keywords per location, an additional, separate 10 Digit Long Code Number for three of Advertiser’s locations (if Advertiser is utilizing 10DLC texting) and access to enhanced messaging features including a “Birthday Club” functionality. In addition, if Advertiser has ordered the Enterprise Text Product, Advertiser may utilize Enterprise Text for messaging promoting additional locations, beyond three, for an extra $150 per location, and will receive three additional vanity keywords, separate 10 Digit Long Code Number, and Promotional Materials for each such location.
If Advertiser has ordered a Custom Dedicated Short Code CloseBy® Text Marketing Product “Custom Dedicated Short Code” or a “CDSC”” the Minimum Term of Service is 12 months beginning on the Acceptance Date. CDSC provides Advertiser with text messaging to an unlimited number of Subscribers for Advertiser’s text list, to an unlimited number of Advertiser’s business locations in all states in the United States other than Alaska and Hawaii. This program includes up to 100,000 text messages sent in connection with Advertiser’s utilization of the CloseBy® Platform during each calendar month of the Minimum Term, and unlimited access to establish and utilize keywords.
2. Excess Messaging Rate. In the event that Advertiser utilizes more than its maximum volume of text messages in connection with Advertiser’s VIP Text, Premium Text, or Enterprise Text program during any Product Term, Advertiser will pay Publisher one and one half cents ($.015) per additional text message. In the event that Advertiser utilizes more than 100,000 text messages sent in connection with Advertiser’s Custom Dedicated Short Code program during a calendar month, Advertiser will pay Publisher one and one half cents ($.015) per additional text message. In either case, with regard to message volumes utilized by Advertiser during the Product Term, or in the case of CDSC programs during the calendar month, Publisher will bill Advertiser monthly in arrears for such excess text messaging, and Advertiser agrees to pay such charges promptly upon receipt of Publisher’s invoice. Advertiser may also purchase additional pre-paid messaging credits in increments of 25,000, 50,000, 75,000 or 100,000 or more messages. The per-message price of such pre-paid Bulk Messaging purchases is presumptively one and a half cents ($.015) per-message, unless such a Bulk Purchases is contracted for at a different price designated in a telephonically recorded agreement or other Order Form subject to the General Terms and Product Terms of this Agreement.
3. Messaging Tabulation. For purposes of these CloseBy® Text Marketing Product Terms, text messages are considered all outgoing and incoming text messages processed through the CloseBy® Platform in connection with Advertiser’s account, and for the avoidance of doubt, shall include all messages from Advertiser to a Subscriber and all messages from a Subscriber directed to Advertiser, Advertiser’s keyword, vanity keyword, or long code, or any other identifiers of Advertiser. Text messages are tabulated according to the number of recipients, such that any message sent to a single Subscriber constitutes one message, and if the same message is sent to a second Subscriber it will count as two messages; a message sent to 150 Subscribers for example would be counted as 150 messages. Message utilization does not carry over or become credited to any other Product Term or in the case of DCSC into any other calendar month. Message utilization calculations begin anew at the start of each Product Term or in the case of DCSC each new calendar month. No refund or credit will be given for unutilized text messages or any other purchased features during or at the end of a term, under any circumstance whatsoever.
4. Support. Advertiser will be supported in utilization of the CloseBy® Text Marketing Product by the efforts of Publisher’s Text Marketing Account Specialists. Publisher’s Text Marketing Account Specialists will be available for CloseBy® Platform training and assistance. Publisher will also provide technical support. For the avoidance of doubt, in the event that Publisher provides Advertiser with marketing materials or ideas to increase awareness of Advertiser’s text marketing program, assists Advertiser with the creation or sending of a message on Advertiser’s behalf, or provides message suggestions or marketing ideas for Advertiser’s use of CloseBy® Text Marketing, Advertiser shall indemnify and hold harmless the Publisher Indemnitees from and against any and all claims, suits, proceedings, investigations, liabilities, losses, damages, settlements, costs or expenses, including reasonable attorneys’ fees and costs, arising out of such materials, ideas or assistance, or Advertiser’s activities in connection therewith.
5. Additional Purchases. Advertiser may make additional purchases in connection with CloseBy® Text Marketing, including features or services such as dedicated short codes, additional 10DLC text numbers, vanity codes, branded messaging, pre-paid bulk messaging credits, Product upgrades, or call forwarding services as such products or services may be from time to time offered by Publisher, and in any such future circumstances wherein Advertiser makes payment and Publisher accepts payment for such orders without additional signed or recorded assent documenting agreement to the terms and conditions of this Agreement, the parties agree that they intend that all such future orders to be subject to and governed by the terms and conditions of this Agreement. In the event of Product upgrade purchases, such a mid-term upgrade made during the first three months of the existing Product term at the price reflected in the recorded oral agreement or Order Form will result in Advertiser having access to the upgraded features or functionality of the program from the purchase date through the end of the then current term as reflected in recorded oral agreement or the Order Form; and in the event of mid-term Product upgrade purchase made during the final four months of the existing Product term in Advertiser will have access to the upgraded features or functionality of the program at the price reflected in the recorded oral agreement or Order Form beginning on the purchase date and continuing for a term lasting twelve months past the expiration of the then-current term.
6. Automatic Annual or Month to Month Renewal. Custom Dedicated Short Code programs are not eligible for month to month renewal and will renew for subsequent a subsequent annual term if not cancelled in writing subject to the Notice provisions described in Section 20 in the General Terms of this Agreement at least 30 days prior to the anniversary of the Acceptance Date. VIP, Premium, and Enterprise programs are eligible for month-to-month renewal after the Minimum Term. In the event of any Monthly Renewal Term, Publisher will charge or bill Advertiser the monthly rate for CloseBy® Text Marketing at a cost representing one twelfth of the annual rate (if Advertiser ordered the Premium or Enterprise Product) or one sixth of the six-month rate (if Advertiser ordered the VIP Product) as shown on the Order Form, and the first 8,330 text messages utilized by Advertiser (if Advertiser ordered the VIP or Premium Product) or the first 12,500 text messages utilized by Advertiser (if Advertiser ordered the Enterprise Product) during that Monthly Renewal Term will be without additional cost to Advertiser, and any volume of messages in excess of that number will be billed by Publisher to Advertiser in arrears at the rate of one and a half cents ($.015) per message.
7. Continuing Obligations. Upon the expiration or cancellation of the last Product Term with respect to the of the CloseBy® Text Marketing Product, Advertiser acknowledges and agrees that (a) Advertiser will be restricted from accessing the CloseBy® Platform; (b) any Content or other data in the CloseBy® Platform, including messaging history and Subscriber information, may be lost or destroyed by Publisher; (c) Publisher has no responsibility to Advertiser to store, keep or share with Advertiser any Content or other information or data residing in Publisher’s databases or platforms; and (iv) no refund or credit will be given for unutilized messages, under any circumstance or for any reason.
8. Product Dependence on Third Parties. The provisions of this Section 8 are in addition to any provisions of the General Terms that cover the same subject matter, including Sections 15 and 16.
(a) Publisher sends and receives text messages via mobile network operators, and the timing of the delivery of those messages is subject to the constraints imposed by those operators. While Publisher shall use reasonable efforts to deliver Advertiser’s messages as quickly as possible, Publisher cannot guarantee, nor commit to, a specific maximum delivery time. Actual delivery times will depend on the specific policies and constraints of the various entities involved in the transmission of Advertiser’s messages across the mobile network. Publisher is not liable for any loss incurred by the failure of a message to be delivered in a timely manner, or to be delivered at all, and Advertiser acknowledges that damages for financial or other loss resulting from delivery failure cannot be claimed from Publisher for any such failure. Advertiser further agrees that message contents are considered to have zero value.
(b) Advertiser acknowledges that the CloseBy® Platform will be inaccessible or inoperable from time to time for various reasons, including but not limited to equipment failures, maintenance and repair downtime, congestion of the network, interruption of utilities including electricity, telecommunications, or digital transmissions infrastructure, human error, or due to the effect of malicious hacking Advertiser agrees that Publisher shall not be liable for such interruptions of CloseBy® Platform accessibility and acknowledges that Publisher does not guarantee such accessibility on a continuous and uninterrupted basis.
(c) Advertiser acknowledges that the CloseBy® Text Marketing Program is dependent on the current policies and continuing provision of service by essential Third-Party Suppliers, including telecommunication carriers, messaging aggregators, and internet infrastructure companies, and on Applicable Laws in existence on the date of this Agreement regarding utilization of commercial text marketing. Advertiser acknowledges that Publisher has no control over the independent business decisions or private or public policies developed by these third parties but that the functionality of CloseBy® Text Marketing Product is subject to them. Advertiser acknowledges that Advertiser’s capacity to use the CloseBy® Text Marketing Product may be modified, diminished, eliminated, or changed, with or without advance notice to Advertiser due to the decisions or policies promulgated by such third parties. Advertiser agrees to bear the costs and risks of such changes or losses solely, and without refund or any other redress from Publisher. Advertiser acknowledges and agrees that the CloseBy® Text Marketing Product is not designed to facilitate texts to international or offshore consumers, that some domestic mobile operators or telecommunications carriers and their subscriber may not be accessible through the CloseBy® Platform, and that not all sent messages sent by Advertiser will be received by Subscribers.
(d) In the event that any governmental body or Third-Party Supplier essential to the use or functioning of CloseBy® Text Marketing requires or levies any additional fees subsequent to the Acceptance Date, including application costs, licensing fees, use or sales taxes, or other sums charged by or required of governmental authorities or Third-Party Suppliers, Publisher agrees to denote and charge these fees to Advertiser in Publisher’s sole discretion, without markup, and Advertiser agrees to pay such sums promptly and in the same manner that Advertiser has previously paid for items ordered from Publisher.
9. Ownership and Use Restrictions. Advertiser agrees that the CloseBy® Platform and any information or data residing in the Platform, including Subscriber telephone numbers and opt-in data that is entered into or stored in the CloseBy® Platform, any keyword or vanity keyword, the 36000 shortcode, and any ten digit long code, any dedicated shortcode, or similar number provided by Publisher and used in connection with the CloseBy® Text Marketing Product constitutes “Publisher Property” subject to Section 11 of the General Terms, and Publisher shall provide access to the Platform only during the applicable Product Term. Publisher shall not allow Advertiser to upload Subscriber telephone numbers or opt-ins into the CloseBy® Platform, meaning that each Subscriber must initiate their own opt-in to Advertiser’s CloseBy® Text Marketing Program by texting Advertiser’s keyword to 36000 or to Advertiser’s specific ten digit long code number or to Advertiser’s dedicated short code. Similarly, Publisher shall now allow Advertiser to copy, transfer, disclose, or export Subscriber’s telephone numbers or other Subscriber data out of the CloseBy® Platform or use that information for any purpose than those disclosed to Subscribers.
10. Acceptable Use and Compliance with Laws, Regulations and Industry Best Practices.
(a) Advertiser shall adhere to the most recent versions of the leading domestic wireless industry trade association’s guidelines, the CTIA Messaging Principles and Best Practices, which appear at https://api.ctia.org/wp-content/uploads/2019/07/190719-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf.
(b) Without limiting anything else in this Agreement, Advertiser represents, warrants and covenants to abide by all Applicable Law regarding text message marketing and, notwithstanding anything to the contrary under this Agreement, Advertiser shall be solely responsible and liable for any claims arising out of or related to the CloseBy® Text Marketing Product provided to Advertiser hereunder, including content provided by Publisher on behalf of Advertiser.
(c) Without limiting the foregoing, Advertiser promises to acquaint itself with the rules and regulations governing text and email messaging by reviewing the following laws and visiting the following websites:
Telephone Consumer Protection Act (TCPA) https://www.fcc.gov/sites/default/files/tcpa-rules.pdf
Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM) https://www.ftc.gov/sites/default/files/documents/cases/2007/11/canspam.pdf
Federal Trade Commission: http://www.ftc.gov
(e) The following additional terms, and conditions and policies apply to Advertiser’s use of the CloseBy® Text Marketing Product, and any violation will constitute a material breach by Advertiser which will entitle Publisher, without limiting any other remedies available under this Agreement or at law, to immediately suspend or cancel Advertiser’s access to the CloseBy® Platform without notice:
Publisher has a zero tolerance policy for unsolicited commercial texting. Advertiser shall utilize the CloseBy® Platform only to lawfully send messages to Subscribers who have opted to receive them. Advertiser agrees not to sell, license, trade, share or otherwise make available Subscriber data or allow a third party access to the CloseBy® Platform. Advertiser shall not send text messages on behalf of or to promote the interests of a third party (including an independently owned business or other entity). Advertiser will be assigned a unique username and password that will be used to access the CloseBy® Platform. It is Advertiser’s responsibility to maintain the confidentiality of those credentials, and Advertiser agrees to notify Publisher if Advertiser suspects that there has been unauthorized access to its account. Advertiser agrees not to share, sell, or rent the personally identifiable information of any Subscriber to any third party.
Publisher prohibits use of the CloseBy® Platform, and Advertiser promises not to utilize the CloseBy® Platform, to send messages of a nature that could be regarded as sexually themed, or that promote hate, or that sell or market firearms, ammunition, alcohol, tobacco products of any kind, CBD products, marijuana, or any other controlled substance. Advertiser shall not utilize the CloseBy® Platform to send message content that is libelous, scandalous, threatening, harmful, or offensive, or that otherwise violates or infringes the rights of any third party, including IP Rights.
Advertiser agrees to clearly identify Advertiser in all messages as the sending entity.
Advertiser agrees to utilize the Platform only for lawful purposes, and to refrain from sending messages that are not appropriate for children under 18 years of age.
Upon request by Publisher and at other times periodically, Advertiser agrees to inform Advertiser’s text Subscribers of STOP instructions and policies which allow the recipient to remove themselves from Advertiser’s list of opt-in text Subscribers, and to periodically notify text Subscribers accurately of the anticipated frequency of messages to be sent by Advertiser.
Advertiser promises to permit all message recipients to withdraw consent, unsubscribe, or opt-out of receiving messages and to immediately provide notice to Publisher of a Subscriber’s or message recipient’s “opt-out” request or withdrawal of consent to continue receiving messages to the extent that such an attempt to opt-out is not made through the CloseBy Platform but is instead communicated to Advertiser. Advertiser acknowledges and agrees that, should any individual directly contact Advertiser to request they be removed from Advertiser’s list, that Advertiser shall instruct them to text the reply STOP to Advertiser’s keyword on short code 36000 or to Advertiser’s ten digit long code number and remove their number through the Service, and that they will receive no further messages from Advertiser. In addition, under such circumstances Advertiser shall also immediately notify Publisher in writing of such a request, so that Publisher can confirm that such an opt-out has been received and effectuated.
In any circumstances where Advertiser prepares marketing materials promoting its use of the CloseBy® Text Marketing Product or inviting consumers to join its text list, regardless of the medium and including signage, banners, emails, printed advertising, broadcast, social media, or other online promotion, Advertiser agrees to prominently include the following required language if Advertiser is utilizing the shared short code 36000:
“Terms and conditions available at https://www.closeby.com/terms-of-use/. All messages are standard rate; only message and data rates may apply. You may receive as many as 30 text messages per month from an automated system for each keyword list you opt-in to. Not all carriers are supported. To stop receiving messages, Text STOP to 36000. For help, Text HELP to 36000. Consent to receive texts is not required/condition of purchase.”
In the event that Advertiser is utilizing a dedicated short code or ten digit long code, Advertiser instead agrees to prominently include the same language, but with Advertiser’s five digit short code or ten digit long code in place of the 36000 numbers that appear in the preceding sentence.
Advertiser agrees that it shall not require or condition the sale of any product or service on a consumer opting in to receive messages from Advertiser through the CloseBy® Platform.
Advertiser agrees, to the fullest extent permissible by law, that with respect to the TCPA and its regulations that Advertiser, and not Publisher, initiates or causes to be initiated any “telephone call” that results in the delivery of a message to any cellular telephone service, when such mobile phone number was used to send a message on Advertiser’s behalf.
Advertiser agrees, to the fullest extent permissible by law, that with respect to the CAN-SPAM Act and any regulations promulgated thereunder, Advertiser and not Publisher, is the “sender” of any electronic mail delivered to a message recipient when such message was sent on Advertiser’s behalf.
Advertiser agrees to use the email messaging functionality of the Platform only in compliance with the CAN-SPAM Act and all other Applicable Law, including those relating to advertising, sales or promotional practices, redemptions, refunds and provision of Advertiser’s products or services, laws that govern false, unfair and deceptive practices, coupons, alcohol or tobacco, health or safety, laws that govern lotteries, sweepstakes, contests and promotions, and laws that govern the collection of donations and charitable giving.
Advertiser acknowledges that all or nearly all small and business commercial text messaging services, including the CloseBy® Text Messaging Product, will be required by telephony carriers to transition from Short Message Service to 10 Digit Long Code Service (“10DLC”) at an unknown date anticipated to be in late 2020 or 2021. Advertiser agrees to comply with all of Publishers requirements, to share data or fill out any required applications or other paperwork required of telephony carriers or the Publisher, and to in all other regards cooperate in the transitioning of the messaging service from shared short code to ten digit long code.
11. Data Compilation and Sharing. Publisher, in order to provide Advertiser with better service, will maintain access to Advertiser’s data and has the right, but does not assume the obligation or responsibility, to monitor Advertiser’s utilization of the CloseBy® Platform. Advertiser acknowledges that Publisher may use this access and monitoring to develop and share text marketing subject matter expertise, best practices, and success stories among and with similarly situated businesses as Advertiser. Any sharing of such information, analysis, case study or other such data shall be limited to outbound marketing message content sent by Advertiser and Publisher’s general characterization of messaging results, and shall not include consumer information of a personally identifiable nature. Any such sharing or dissemination of Advertiser messages, messing history, outcomes, or performance metrics is hereby permitted by Advertiser and may be done in the sole discretion of Publisher and without compensation or further obligation to Advertiser.
12. Modification of CloseBy® Text Marketing Product Terms. Publisher reserves the right to periodically make updates and changes to the CloseBy® Text Marketing Program and/or updates or revisions to these Product Terms. Publisher will provide notification of these changes in its sole discretion by putting a general notice on the webpage https://www.closeby.com/terms-of-use/ or by linking to the updated terms on the login page to the CloseBy® Platform, or by email, or following any other notice requirements of this Agreement. Advertiser’s subsequent use of the CloseBy® Text Marketing Product after such posting of new terms or changes to the program represents Advertiser asset to any such changes.
AMP Video Products Product Terms
If the Order Form includes the purchase of an AMP Video Product, the following additional terms and conditions shall apply and are incorporated into and form a part of the Agreement.
(a) If Advertiser has ordered an AMP Video Product, Publisher will create custom video content (“Video Content”) to assist Advertiser in promoting itself and developing a more engaging or attractive online presence. Publisher will provide Advertiser with access to the Video Content via downloadable link so that Advertiser may display, host, or promote the Video Content. Video Content developed under this Agreement and provided to Advertiser will represent original works of authorship, custom designed by Publisher, using still or panoramic photos and other imagery with slide show effects, set to licensed music selected by Publisher, and depending on the Product selected, professionally written and recorded voiceover. AMP Video Products include the following Video Content options:
Business Intro™ Video – This Product combines still or panoramic imagery, professional voiceover, and licensed music to provide a brief, informative and engaging overview of Advertiser’s business.
Who We Are™ Video – This Product combines still or panoramic photos, professional voiceover, licensed music, and features a professionally written script that tells the origin story of the Advertiser or that gives a more detailed description of the unique or distinctive characteristics, features, or appealing qualities of the Advertiser. A typical Who We Are™ Video will be 2-3 minutes in length and features authentic, onsite, non-stock imagery.
Business Intro Bundle – This Product bundle includes two videos which may be two Business Intro™ Videos, each with a unique script and a different overview of the Advertiser, or one Business Intro™ Video and one InsideView™ Video.
Premium Video Program – Business Intro™ This Product bundle includes one Who We Are™ Video and two Business Intro™ Videos.
(b) Together with the Video Content. Publisher will assist Advertiser in the publication and distribution of the Video Content in one or more of the following ways: (i) hosting the Video Content on a professional third-party video hosting platform so that Advertiser may redistribute the Content professionally via its website, social media, by email signature embedding or other methods; (ii) publishing Advertiser’s Video Content to Publisher’s business YouTube channel or advising or assisting Advertiser in the establishment of their own YouTube channel; and (iii) providing guidance and advice to Advertiser, as requested by Advertiser, related to marketing Video Content. Video Hosting and Marketing Programs are free for the first 60 days and are charged at the rates shown on the Order Form on a month to month basis thereafter. The Minimum Term of the Video Hosting and Marketing Program is one month. The Video Hosting and Marketing Program constitutes Services of Publisher in connection with the AMP Video Product.
2. Rights Transfer. Subject to Advertiser’s full payment of all amounts due under the Agreement, Publisher hereby grants to Advertiser a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, non-transferable and non-sublicensable right and license to use, modify, reproduce, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform the Video Content in any and all media for Advertiser’s promotional and advertising purposes.
3. Payments. Advertiser will incur no charge for the Marketing Program for the first 60 days following the Acceptance Date, and thereafter Advertiser shall pay the monthly Marketing Program fee set forth in the Order Form in advance every 30 days beginning on or about the 61st day following the Acceptance Date, on a month-to-month basis, until the Marketing Program is cancelled.
4. Cancellation of the Video Hosting and Monthly Marketing Program. Advertiser may cancel the Video Hosting and Marketing Program effective at the end of the then-current Product Term by providing Publisher written notice of non-renewal at least two business days prior to the end of such Product Term. Such notice must be sent by an authorized representative of Advertiser, either by email delivered to firstname.lastname@example.org or as set forth in Section 20 of the General Terms. Any such non-renewal notice must (i) clearly identify the Advertiser and the authorized individual requesting the cancellation on behalf of the Advertiser, and (ii) express a clear intention to cancel any subsequent Monthly Renewal Terms with respect to the Video Hosting and Marketing Program. In the event that a cancellation is confirmed on or one day prior to a billing date, cancellation of the Video Hosting and Marketing Program will not become effective until the end of the following Monthly Renewal Term.
5. Continuing Obligations. Upon cancellation of the Video Hosting and Marketing Program by either Advertiser or Publisher, Publisher will (a) discontinue hosting Advertiser’s Content on a professional third party hosting site and Publisher’s YouTube channel, and such Content may become permanently inaccessible, and (b) upon request made within 30 days following such cancellation, and Subject to Advertiser’s full payment of all amounts due under the Agreement, provide access to another copy of the Video Content to Advertiser for Advertiser’s independent publishing or marketing efforts. Thereafter, Publisher has no responsibility to keep, save, or provide video Content to Advertiser, and it may be lost or destroyed.
6. Advertiser Engagement and Cooperation.
Advertiser acknowledges and agrees that efficient and economical production of Video Content depend on the active, prompt and responsive engagement and cooperation of Advertiser personnel in the creation and proofing of the Video Content. For each video, two opportunities for revisions are provided at no charge. Publisher will provide Advertiser with draft versions of Video Content via email and embedded link, with detailed instructions on how to provide Publisher with requested revisions or edits, and Advertiser agrees to carefully follow the directions for reviewing, approving, or requesting revisions to the content. Publisher may provide proofing by sending a completed first draft of the video (“First Draft”), or may first provide Advertiser an opportunity to provide edits or revisions to audio content such as the script, voiceover, and music (“Audio Rough Cut”) and then subsequently, to imagery arrangement in a review of the integrated audio-visual content (“Video Rough Cut”) which include revisions to the Audio Rough Cut previously requested by Advertiser. In response to such First Draft, Audio Rough Cut, or Video Rough Cut versions of videos or video components, Advertiser will have three business days after receipt of each to request revisions. In the event that revisions are made to the drafts, Publisher will use reasonable efforts to address such requests and will incorporate conforming revisions in a final cut (“Final Cut”) for Advertiser’s review and approval, which shall not be unreasonably withheld. Failure to expressly approve or reject a First Draft, Rough Cut or a Final Cut within three business days of Publisher’s providing the same to Advertiser shall automatically constitute Advertiser’s approval thereof.
(a) Revisions requested by Advertiser in excess of the two free revisions described herein, as well as those revisions requested after the three-day period for making modifications, will be subject, in Publisher’s sole discretion, to production charges of $45 per hour, which will be billed by Publisher and paid by Advertiser, or automatically charged in the case of a credit card payment, or debited in the case of an ACH payment by Publisher.
7. Liability. Advertiser shall be solely liable for any and all content, information, representations, claims or other materials in the Video Content.
Google Street View Trusted Photography and Tours Product Terms
If the Order Form includes the purchase of Google Street View Trusted Photography and Tours, the following additional terms and conditions shall apply and are incorporated into and form a part of the Agreement:
(a) Publisher will schedule and conduct a photoshoot of the Advertiser’s interior in order to produce still images or panoramic photospheres. Depending on the product purchased, Publisher will then edit the photos and arrange them to create a clickable panoramic virtual tour composed of the photographed scenes and then publish the still images, panoramic imagery, and panoramic virtual tour (together or separately, the “Photography”) by uploading the Photography to the Advertiser’s GMB page at Google (the “Advertiser’s Google Listing”) in compliance with the guidelines of the Google Street View Trusted program. Upon fulfillment of the photoshoot and transmission of the Photography to Google, Publisher will provide Advertiser with instructions for re-embedding the Photography on Advertiser’s website or social media sites, and will provide Advertiser with copies of the still photos via username and password protected downloadable link, or if selected on the Order Form for an additional charge, a mailed flash drive.
(b) There are several Google Street View Trusted Photography and Tours Product options, including:
Professional Still Images – includes 30 high quality still photographs, with up to 10 such still photos uploaded to Advertiser’s Google Listing.
Essential Virtual Tour – includes an interior panoramic tour composed of 4-7 panoramic images, with up to 10 still photos provided to Advertiser.
Foundational Virtual Tour – includes interior panoramic tour composed of 8-12 panoramic images, with up to 10 still photos provided to Advertiser.
Comprehensive Virtual Tour – includes interior panoramic tour composed of 13-17 panoramic images, with up to 20 still photos provided to Advertiser.
Premium Virtual Tour – includes interior panoramic tour composed of 18-29 panoramic images, with up to 25 still photos provided to Advertiser.
Flagship Virtual Tour – includes an interior or external panoramic tour composed of 30-39 panoramic images, with up to 30 still photos provided to Advertiser.
Custom Virtual Tour – includes an interior or external panoramic tour composed of 40-60 panoramic images, with up to 35 still photos provided to Advertiser.
Double Custom Virtual Tour – Includes interior and external panoramic tour composed of 100-120 panoramic images, with up to 70 still photos provided to Advertiser.
Triple Custom Virtual Tour – Includes interior and external panoramic tour composed of 150-180 panoramic images, with up to 105 still photos provided to Advertiser
(c) Advertiser authorizes Publisher to take photographs of the exterior and interior of Advertiser’s premises that are acceptable for photographing in connection with the Google Maps Street View Program. Publisher will use commercially reasonable efforts to ensure that the Photography meets the Google Street View Program’s technical specifications for processing and use in accordance with the Google Terms of Service (as defined below).
2. Independent Party. Publisher is an independent business and neither the Publisher nor any of its personnel are a Google employee or agent, but Publisher is authorized under the Google Maps Street View Program to provide photography services to Advertiser and other parties that desire to participate in the Street View Program and meet the program criteria.
3. Google Terms of Service.
(a) Advertiser agrees that the uploading, processing, and use of the Photography will be governed by Google’s standard online terms of service for such Photography as set forth at https://policies.google.com/terms?hl=en-US (along with relevant Additional Terms, as set forth at https://www.google.com/streetview/ or such other URL/Additional Terms as Google may designate from time to time (collectively, the “Google Terms of Service”) and Advertiser hereby agrees to comply with such Google Terms of Service. Advertiser acknowledges that Google periodically updates, changes, and modifies the terms and conditions governing the uploading, processing, and use of Photographs, as well as its policies for displaying the Photographs, imagery and other data.
(b) GOOGLE’S USE OF THE PHOTOGRAPHS IS GOVERNED SOLELY BY THE GOOGLE TERMS OF SERVICE. WITHOUT LIMITING THE GENERAL TERMS OF THIS AGREEMENT, IN NO EVENT WILL GOOGLE OR PUBLISHER BE LIABLE TO ADVERTISER (UNDER ANY THEORY OR CIRCUMSTANCE) FOR ANY DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
(c) Advertiser acknowledges that Publisher cannot and does not guarantee, promise, or forecast with any degree of certainty the manner in which or length of time for which Google will host, integrate, or display the Photographs, and that Publisher has fully performed its obligations and discharged all of its responsibilities under this Agreement after it has first transmitted the Photography to Google.
4. License. Subject to Advertiser’s full payment of all amounts due under the Agreement, Publisher hereby grants to Advertiser a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, non-transferable and non-sublicensable right and license to use, modify, reproduce, publicly display, distribute, transmit, publish and share the Photography in any and all media for Advertiser’s promotional and advertising purposes.
5. Payment Terms. Advertiser agrees to pay for the Google Street View Trusted product contemporaneously with the Acceptance Date. In the event that payment in full to Publisher is not made at that point, Advertiser agrees to pay any balance due for the Services on or before the photography appointment date shown on the Order Form or arranged subsequently between Advertiser and AMP and documented by exchanged scheduling correspondence (by mail, email or other means) sent by Publisher to Advertiser that describes when Publisher is scheduled to conduct the onsite photoshoot (the “Photoshoot Date”). In any event that the initially scheduled Photoshoot Date is re-scheduled, Advertiser and Photographer agree that the balance of the cost of the Product not paid at the point of entering into this Agreement will be charged on the originally scheduled Photoshoot Date. The full amount shown on the Order Form or Order Confirmation Form is a one time, non-recurring fee for the Google Street View Trusted services provided by Publisher.
6. Rescheduling; Cancellations.
(a) Because Publisher’s photographers travel extensively and are typically tightly booked and scheduled, the costs of re-scheduling a planned photoshoot are often substantial. In the event that Advertiser changes the date or time of the photoshoot more than 48 hours after initially agreeing to a scheduled time or otherwise does not appear or make the premises sufficiently available for the scheduled photoshoot, Publisher will charge and Advertiser shall pay a $45 rescheduling fee (“Rescheduling Fee”) in order to partially remedy downtime, logistical matters, lost productivity, and related expenses that may have been incurred by Publisher in connection with a modified photography appointment. The Rescheduling Fee will be added to any other sums due from Advertiser.
(b) Publisher will work diligently and professionally to schedule and fulfill these Services and relies on Advertiser to cooperate reasonably in that process. In the event that (i) Advertiser unilaterally requests on more than two occasions to reschedule photoshoot appointments previously agreed to by Publisher and Advertiser, (ii) Advertiser on two separate occasions declines to be photographed for any reason or cannot be photographed at an appointment time because Advertiser’s location is closed, unstaffed, or otherwise inaccessible to the photographer at the time and date of a scheduled photoshoot; (iii) Service Provider is unable, over the course of 12 months and no less than six documented phone calls made during standard business hours, to secure and successfully complete such a photoshoot (despite Publisher’s diligence and reasonable availability), Publisher’s obligation to render the Google Street View Trusted Photography and Tours Services hereunder will be deemed fully performed by Publisher, and Publisher shall have no further obligations to provide such Services to Advertiser hereunder.
7. Refunds. Publisher will refund payments made by Advertiser to Publisher for the Google Street View Trusted Product if Google rejects the Photography for failure to meet the Google Maps Street View technical specifications and if Publisher is unable to correct the problem, or in the event that Publisher is unable to provide fulfillment for any other reasons not caused by Advertiser.
Custom Website Services Product Terms
If the Order Form includes the purchase of Custom Website Services, the following additional terms and conditions shall apply and are incorporated into and form a part of the Agreement:
1. Product. Publisher will design, build, and host a custom website (“Website”) for Advertiser and will purchase a URL to be used by Publisher to publicly display Advertiser’s website. Publisher will host and maintain the Website for the applicable Product Term(s) of the Custom Website Services Product.
2. Consultation. Publisher will review information supplied by Advertiser which may include any questionnaire responses, other notes, images, content, ideas and other Content provided by Advertiser during Publisher’s consultation with Advertiser. Publisher shall prepare a Scope of Work Form (“SOW”) that will reflect the range of website pages, and a general description of site functionality and design attributes, or items that may be included or featured. Advertiser may select several features and designs for inclusion in the SOW, which may include social media links or integrations, directions and maps, lead capture, appointment setting, consumer review capture and moderation, selective aggregation of offsite testimonials (with attribution), elements of basic e-commerce, blog posting, announcements and other Posts, expanded navigation or content options, staff pages, hosting of printable or fillable forms or documents, menus, before and after images featuring work performed, custom call to action choices, video content, an embedded panoramic virtual tour, or multiple locations. Advertiser acknowledges that it has reviewed the SOW and will provide sufficient copy, direction, imagery, and other Content and feedback to Publisher to enable Publisher to design and host the Website for the price reflected as the Design & Build Fee (as defined below) reflected on the Order Form.
3. Review and Approval. Advertiser acknowledges and agrees that efficient and economical performance of the Custom Website Service, and adherence to the planned features and functionality set forth in the SOW and to the agreed cost of the Design & Build Fee and Monthly Maintenance Fee (as defined below) (each as reflected on the Order Form), depends on the active, prompt and responsive engagement and cooperation of Advertiser. Review and acceptance by Advertiser shall not be unreasonably withheld, conditioned or delayed. Advertiser agrees to take or promptly return consultation calls from Publisher during Publisher’s process of developing the Website. Publisher will provide a draft website (“Draft Website”) for Advertiser’s feedback and approval together with instructions to Advertiser for requesting edits, revisions or providing approval. Advertiser will have five days after receipt of each Draft Website to express its feedback, requested revisions, or acceptance for public hosting by following any instructions given by Publisher. Advertiser is entitled to three rounds of revisions at no additional charge. If changes are requested by Advertiser that are outside the scope of the SOW, or if more than three rounds of changes are required during the review and approval process described above, Publisher will provide Advertiser with a Change Order setting forth additional Design & Build Fees in consideration for the additional Services. Publisher will use commercially reasonable efforts to make responsive changes to the Draft Website to achieve Advertiser’s requested revisions or to correct any material deficiencies, so long as the requested revisions are reasonable and within the scope of the SOW. Advertiser’s failure to express feedback, acceptance or rejection pursuant to this paragraph within five days of receipt of any Draft Website shall constitute acceptance by Advertiser. Once Advertiser confirms that the website is acceptable or revisions are implemented and a five-days period has elapsed without further revisions being requested from Advertiser, the site will be hosted on Publisher’s URL so that it becomes publicly viewable.
4. Fees. There are several different types of fees associated with Website Services.
(a) Design & Build Fee. Advertiser shall pay Publisher a one-time fee for designing and implementing the Website (“Design & Build Fee”). Payment for the Design & Build Fee may be made with a one-time payment or with a two-part payment, as reflected on the Order Form. In the event that Customer has agreed to a one-time Design & Build Fee, Advertiser shall remit payment in full within one business day following the Acceptance Date. In the event that Advertiser has agreed to a two-part Design & Build Fee, Advertiser shall remit payment of half the fee within one business day following the Acceptance Date and the other half on the date the Website is first made publicly available by Publisher.
(b) Monthly Maintenance Fee. Publisher shall use commercially reasonable efforts to host the Website and periodically update the content in accordance with the Hosting and Maintenance Plan purchased by Advertiser as reflected in the Order Form. The fee for such service will be charged, debited, or invoiced by Publisher monthly, on a recurring basis. This Monthly Maintenance Fee, if any, includes Publisher’s charge for hosting the Website, as well a maximum number of Publisher-provided hours of service for updating or changing the Website Content (“Maintenance Hours”), as reflected in the Order Form. Advertiser may select one of the standard following Hosting and Maintenance Plans (subject to any updates or customizations to applicable plans or fees set forth in an Order Form):
Option Schedule Hosting and Maintenance Plan Description Monthly Maintenance Fee
1 Quarterly For current OPTIMA customers only, and to the extent applicable, Publisher will update content on the Website on a quarterly basis No Fee
2 Quarterly For all other customers, Publisher will update content on the Website on a quarterly basis to the extent applicable (up to 2 Maintenance Hours per month) $44/month
3 Monthly To the extent applicable, Publisher will update content on the Website on a monthly basis (up to 4 Maintenance Hours per month) $69/month
4 Weekly To the extent applicable, Publisher will update content on the Website on a weekly basis (up to 8 Maintenance Hours per month) $169/month
5 Daily To the extent applicable, Publisher will update content on the Website on a daily basis (up to 20 Maintenance Hours per month) Starting at $399/month
(c) Publisher will provide Custom Website Services described herein, including Maintenance Hours, only on business days during normal business hours, 8:00 am to 4:30 pm Central Standard Time. In the event Advertiser requests changes requiring assistance outside of these business hours or on weekends or holidays, Publisher shall charge and Advertiser shall pay a 50% surcharge to Advertiser’s standard Monthly Maintenance Fee. The Maintenance Hours available monthly for website maintenance Services set forth above represent the maximum time Publisher will spend towards website maintenance Services, and the Monthly Maintenance Fee shall be due in full regardless of whether the maximum Maintenance Hours are utilized by Advertiser or performed by Publisher. Advertiser shall not receive a credit, refund or otherwise be reimbursed for any unutilized Maintenance Hours.
(d) Advertiser may request changes to the functional or design elements of the Website (as opposed merely to Website Content) which were not originally anticipated by Publisher and Advertiser. Such changes, and the charges therefore, shall be reflected in a Change Order. Such design updates or functional additions to Advertiser’s Website will require, at minimum, a $150 Change Order fee, which shall include up to the first three hours of service time used in connection with the Services described in the Change Order.
6. Product Term; Cancellation. The Minimum Term for Custom Website Services Product is one month and shall automatically renew for successive one-month Monthly Renewal Terms unless and until either party delivers notice of cancellation to the other party as set forth below. Publisher may cancel the Custom Website Services Product effective at the end of the then-current Product Term by providing Advertiser written notice of non-renewal at least 30 days prior to the end of such Product Term. Advertiser may cancel the Custom Website Services Product effective at the end of the then-current Product Term by providing Publisher written notice of non-renewal at least two days prior to the end of such Product Term. Such notice must be sent by an authorized representative of Advertiser, either by email delivered to email@example.com or as set forth in Section 20 of the General Terms. Any such non-renewal notice must (i) clearly identify the Advertiser and the authorized individual requesting the cancellation on behalf of the Advertiser, and (ii) express a clear intention to cancel any subsequent Monthly Renewal Terms with respect to the Custom Website Services Product. Upon the expiration or cancellation of the Custom Website Services Product, Publisher will discontinue providing Custom Website Services and the Website shall become inaccessible to the public. Publisher shall have no further responsibility to host, display, store, keep or share with Advertiser any other Content created, collected, or developed for or by Advertiser, and the Content comprising Advertiser’s Website may be permanently lost.
7. Domain Names. Advertiser acknowledges and agrees that the URL is owned by Publisher and constitutes Publisher Property. Advertiser shall ensure that the domain name used to host the Website and Publisher’s use thereof as contemplated under this Agreement does not infringe or violate any IP Rights, and Advertiser is solely responsible for conducting trademark clearance for such domain name. Provided Advertiser has paid Publisher in full under this Agreement and any other agreement(s) between Publisher and Advertiser, then upon written request and the furnishing and execution of appropriate forms acceptable to Publisher by Advertiser, during any Product Term with respect to the Custom Website Services Product and for a period of 10 business days after expiration or cancellation of the Product, in consideration for payment of a one-time fee of $175 by Advertiser, Publisher agrees to assign its rights to Advertiser in the domain name used to host the Website, and assist Advertiser to the extent necessary to secure such an assignment by reasonably cooperating with Advertiser to change the registrant associated with such domain name. Otherwise, for the avoidance of doubt, after the expiration or cancellation of the last Product Term with respect to the Custom Website Services Product, Publisher may take any action with respect to the URL, or use the URL for any purpose, in its sole discretion, including return the URL to the registrar it was purchased from or redirect it to a different website, and the Content comprising Advertiser’s Website may be permanently lost.
© 2021 American Marketing & Publishing LLC. Terms version 2.3