Advertising Terms & Conditions

These Advertising Terms and Conditions ("Terms & Conditions") shall be incorporated by reference into and made a part of any insertion order (the "Insertion Order") submitted to Internet Marketing, Inc. (“Company”) by the Business set forth in the Insertion Order. All Insertion Orders are subject to acceptance by Company. Company reserves the right to refuse or cancel any Insertion Order, without cause, at any time. The Terms & Conditions, which are subject to change at any time, with or without notice, and the Insertion Order shall be collectively known as the "Advertising Agreement" or “Agreement.”

 

1. Advertising

(a) In connection with each Insertion Order, Company will establish an advertising campaign for Business (the “Campaign”) for the amounts (“Campaign Budget”) and duration set forth in the Insertion Order, subject to adjustment as set forth herein. Business agrees and understands that Company may take up to 10 business days to review the Campaign and may require further input from Business, in which case the date that Ads are live with one or more Publishers (the “Actual Start Date”) may be later than the Target Start Date set forth in the Insertion Order. In addition, Business acknowledges that Publishers may take several additional days to distribute the Campaign through their network and publications. Company shall have no liability, and Business shall not be entitled to terminate this Agreement other than as set forth in Section 6, as a result of any such delays

 

(b) Company shall manage the Campaign for the number of months (or Periods, as defined below) specified in the Insertion Order. “Period” shall refer to the amount of time required to spend each unit of Campaign Media set forth in the Insertion Order which, due to the fact that Company has limited control over the amount of Advertising actually displayed by Publishers in any time period, may not be equal to a calendar month.

 

(c) The Target End Date specified on the Insertion Order is an estimate of when the Campaign Budget will be exhausted and that it may actually take less or more time to exhaust the Campaign Budget. Furthermore, the Target End Date shall automatically be adjusted by the number of days, if any, that the Actual Start Date is later than the Target Start Date.

 

(d) The term of this Advertising Agreement commences on the date that the Insertion Order is accepted by Company and, subject to Sections 6 and 12, terminates when all amounts set forth on the Insertion Order (the “Campaign Budget”) have been spent and all amounts due to Company have been paid.

 

2. Fees

Business agrees to the pay the following fees, in the amounts set forth in the Insertion Order, in accordance with Section 3.

 

(a) Campaign Media. “Campaign Media” refers to advertising, in whatever format (“Advertising” or “Ads”) placed with online or offline businesses that accept advertising orders from Company (“Publishers”). The total and/or monthly spend on Campaign Media shall be as set forth in the Insertion Order, but may consist of flat fee, cost per click, cost per visit or other forms of Advertising, determined by Company in its sole discretion, consistent with Campaign objectives.

 

(b) Campaign Fees. “Campaign Management Fees” or “Campaign Tracking Fees” (“Campaign Fees”) shall refer to the periodic amount charged by Company for managing and/or tracking Campaigns. These Campaign Fees are in addition to the Campaign Media and are set forth in the Insertion Order, the total amount of which will be equal to the per Period Campaign Fees multiplied by the number of Periods specified in the Insertion Order. Company reserves the right to change the amount it charges for its Campaign Fees at any time, said changes to be applicable to upon execution of a new Insertion Order.

 

(c) Campaign Set-Up Fee. Each Campaign will be subject to a “Campaign Set-Up Fee,” as set forth in the Insertion Order.

 

(d) Destination Page Set-Up Fee. Each new Campaign with respect to which Business elects to have Company assist in the design of a Website or Campaign Landing Page shall be subject to a “Destination Page Set-Up Fee,” as set forth in the Insertion Order.

 

(e) Company makes no guarantee with respect to usage, visit, or cost per visit statistics for any Ads. Business acknowledges that any such statistics provided by Company shall be conclusive and binding on Business for all purposes of this Agreement and not subject to review or challenge by Business for any reason.

 

(f) All fees are subject to change upon notice to Business, but Advertising rates (which are set by Publishers) are subject to change at any time without notice.

 

3. Payment Terms

(a) Payment for all Campaign Media, Campaign Set Up Fees, Destination Page Set-Up Fees and Campaign Fees shall be made at the time the Insertion Order is accepted by Company. At Company’s option, each Period of Campaign Media and Campaign Fees may be paid for, in advance, by charging Business’ pre-authorized credit card, which card will be automatically charged again for the next Period’s Campaign Media and Campaign Fees immediately upon the exhaustion of the prior Period’s pre-paid Campaign Media.

 

(b) Company may, in certain cases, accept payment after the Advertising has been placed. In that event, Company will deliver invoices monthly, reflecting all campaign activity during such period. Business shall pay all invoices within 14 days of delivery, and any amounts not paid when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).

 

(c) In the event of any failure by Business to make payment (including any denial of the payment methods set forth in Section 3(a), Business will be responsible for all reasonable expenses (including attorneys' fees) incurred by Company in collecting such amounts. All payments due hereunder are in U.S. dollars and are exclusive of any sales, use or similar applicable taxes. Business shall promptly pay all such taxes and any associated interest and penalties.

 

4. Tracking Information

(a) Business agrees that Company, in an effort to provide statistics to Business, may apply certain tracking solutions to the Business’ Campaign. Specifically, Business agrees that Company has the right, but not the obligation, to do the following for each Campaign: (i) Provision “Tracking Phone Numbers” that will be displayed to the user in lieu of the Business’ phone number and which will forward to the Business’ phone number; (ii) Substitute Business’ e-mail address(es) with e-mail form(s) in order to be able to track e-mails associated with the Campaign; (iii) Require users to provide registration information in order to print a Business’ coupon; (iv) Deploy click tracking code to track the pages that users may access as a result of the Campaign. Business agrees and understands that Company is not responsible for the original phone numbers and e-mail addresses entered by Business and which the Tracking Phone Numbers and e-mail form(s), respectively, will forward to. Furthermore, Business acknowledges that, for local Business phone numbers, Company will first try to provision a local Tracking Phone Number, but, in the event such a local Tracking Phone Number is not available, Business hereby gives Company permission to provision a toll free Tracking Phone Number instead. Business further agrees that, as part of provisioning Tracking Phone Numbers, Company has the right, but not the obligation, to turn on enhanced phone tracking features. Those features may include, but are not limited to: call review (whereby a recording of the inbound phone call is made and stored for review by Business for a period of time to be determined solely by Company); caller ID (whereby the phone number of the caller is used to look-up their name and address). In the case of call review, Business hereby agrees and understands that an initial recording may be played to callers prior to the completion of calls notifying the caller that the call may be recorded. The exact message to be played to the caller is at the sole discretion of Company or Company’s vendors.

 

(b) “Destination Page” shall refer to the website that users will visit when they click on one of the Business’ Ads. Company currently provides two Destination Page options: (i) With a “Standard Offer Page”, Company provides Business with a basic website based on information provided by Business. Business agrees that Company may restrict the ability of Business to modify or request modifications to Business’ Standard Offer Page once the Campaign is running. Business agrees that Company has the right, but not the obligation, to review and modify any and all content on the Standard Offer Page, whose content – other than any content substituted by Company pursuant to Section 4(a) – remains the sole responsibility of Business; (ii) With an “Existing Website”, Business agrees that Company will direct all users who click on Business’ Ads to a website owned and operated exclusively by Business. Business hereby gives Company permission – during the duration of the Campaign – to do one or more of the following for users visiting the Business’ website as part of the Campaign ONLY: (i) substitute Tracking Phone Numbers for the Business’ website phone numbers; (ii) substitute Tracking E-Mail forms for the Business’ website e-mail addresses; (iii) place click tracking code on pages (URLs) specified by Business; (iv) place a frameset above the Business’ website with the Tracking Phone Numbers and Tracking E-Mail form link as well as additional pertinent Campaign information; (v) place a frameset above the Business’ website with links to the Company’s website, including, but not limited to, the Company’s Local Offers Directory. Business agrees that users visiting the Business’ website other than as a result of the Campaign will not see any of the above substitutions or modifications. Business agrees that Company may provide a mirrored or proxied version of the Business’ website (“Mirrored Site”) and that, in order to do so, Business’ website must be operational, functional, and accessible through the Internet. In addition, Business agrees that, in order for Company to provide the functionality associated with the Mirrored Site, the URL visible above the Mirrored Site to users clicking on the Business’ Ad will reflect the website address for the Mirrored Site and NOT that of the Business’ website. Business agrees that Company is in no way responsible for the operation and functionality of the Business’ website.

 

5. Credits and Rebates

Business may be offered financial credits to be applied to future Campaigns (“Campaign Credits”) in the following instances:

 

(a) If the actual dollar amount of Campaign Media utilized at the end of a Campaign is less than the amount paid in advance by Business, then Business may be allocated a Campaign Credit in the amount of such difference, in Company’s discretion.

 

(b) One or more Publishers may issue rebates to Company, in the form of cash, credits or discounts, for promotional purposes, per negotiated agreements with the company, due to irregularities in Publishers’ systems or otherwise. Company may, in its sole discretion, allocate Campaign Credits to affected Businesses, in whatever form Company deems appropriate. Business acknowledges that Company is not obligated to offer any such credits, rebates, etc. to Business and that if Company does offer any such rebates, credits, etc., that Business shall not be entitled to any more than its pro rata shares, based on all Campaign Media placed by Company for all of its advertisers with such Publisher(s) during the relevant period(s).

 

(c) The terms and conditions applicable to any such Campaign Credits shall be communicated to Business at the time such Campaign Credits are issued.

 

6. Cancellation and Refunds

Once an Insertion Order has been accepted by Company, Business will be responsible for full payment of all fees related to the Campaign. If Business cancels the Campaign for any reason (other than as set forth in the next sentence), all fees for the remainder of the scheduled Campaign shall be immediately due and payable, and all pre-paid fees shall be forfeited. If the entire Campaign Media has not been spent within one month of the Target End Date as adjusted pursuant to Section 1(c), then Business shall have the right to terminate the Campaign and receive a credit equal to any amount of the Campaign Media that was pre-paid less the actual Campaign Media spent, to be applied toward future Insertion Orders.

 

7. Advertising Information

(a) Business shall provide Company with true, accurate and current information for all Ads placed with Publishers. Business will provide all materials for the Advertising in accordance with Company’s policies in effect from time to time, including without limitation the manner of transmission to Company and the lead-time prior to publication of the Advertising. Business agrees that Company has the right but not the obligation to make modifications to Ads prior to their delivery to Publisher and further understands that, once Ads are delivered to Publisher, Business may be limited in its ability to make further modifications to said Ads. Business hereby grants to Company a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute in accordance herewith the Ads and any derivative works based thereon created by Company hereunder.

 

(b) All contents of Ads are subject to Company’s approval. Company reserves the right to reject or cancel any Ad, agreement, URL link, or Publisher position commitment, at any time, for any reason whatsoever (including belief by Company that any placement thereof may subject Company to criminal or civil liability). This right to refuse a listing does not constitute endorsement of any Ad that is accepted by Company, nor does it constitute a warranty that Company will continue to run an Ad once accepted. Company has no obligation to inspect ads or to reject ads that it inspects for any reason.

 

(c) Company reserves the right to modify Ads, including the associated keywords, target geographies and Publishers, consistent with Business’ objectives, at any time, even while a Campaign is active.

 

(d) Business agrees that Company, while it will take all reasonable efforts to promote the various products and services that the Business has selected to promote, makes no guarantee – financial or otherwise – that all such products and services will be advertised, particularly if advertising all such products and services would result in exceeding the Campaign Media amount in the Insertion Order.

 

(e) Business may select certain individual words or word phrases (“Keywords”) to be used in the Campaign. Business agrees that Company, while it will take all reasonable efforts to promote these Keywords at the Publishers, makes no guarantee – financial or otherwise – that all Keywords will be advertised, particularly if advertising all Keywords would result in exceeding the Campaign Media amount in the Insertion Order. In addition, Business agrees that the rules for displaying Ads when certain Keywords are entered by a user at a Publisher are controlled by the Publisher and, as such, Business agrees that Company makes no guarantee – financial or otherwise – about when or where Ads will be displayed when certain Keywords are entered by a user at a Publisher.

 

(f) Business agrees that, while Company will use its best efforts to place Ads in the target geographies specified by Business, Company is not ultimately responsible for the display of Business’ Ads and, as such, cannot guarantee that the Business’ Ads will only or primarily be displayed to people in the target geographies. Business acknowledges that Publishers may use varying means to detect where people are located when determining whether to display an Ad, including, but not limited to: (i) IP targeting; (ii) user registration information; and (iii) explicit geographic search queries made by the user.

 

(g) Positioning of Ads within the directory contained on the Company’s website (the “Company Directory”) or on any page of Company’s website is at the sole discretion of Company. Positioning of Ads on Publisher sites is at the sole discretion of Publisher.

 

(h) Business may not resell, assign or transfer any of its rights hereunder. Any attempt by Business to resell, assign or transfer such rights shall result in immediate and automatic termination of this Agreement, without liability to Company.

 

(i) Company shall determine, in its sole discretion, which online or offline businesses that accept advertising orders from Company (“Publishers”) to use in connection with any Campaign. Business acknowledges that Company does not produce, operate or transmit the Internet sites or services on which Ads may appear – with the exception of the Company Directory -- and that Company acts only as a sales representative or reseller of advertising inventory or listing services for the operators of such Internet sites or services.

 

(j) Company makes no representations, warranties or guarantees of any kind as to the level of sales, purchases, clicks, sales leads or other performance that Business can expect from the Advertising.

 

(k) Business understands that Company is under no obligation and may not be able to provide any samples of Ads in the context of any Publisher’s website or Company’s Directory.

 

8. Business's Representations; Indemnification

Business represents and warrants to Company that Business holds all necessary rights (including the right to use all information, names, trademarks and search terms it provides or includes in its Ads) to permit the use of the Advertising by Company for the purposes contemplated under this Agreement including, without limitation, any URLs, websites and content utilized in connection with Campaign Tracking; and that the use, reproduction, distribution, transmission or display of the Ads, any data regarding users, and any material to which users can link, or any products or services made available to users, through the Ads will not (a) violate any criminal laws or any rights of any third parties or (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. Business agrees to indemnify, defend and hold Company harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) breach (or alleged breach) of any of the foregoing representations and warranties, or (ii) any third party claim arising out of or in connection with use of or access to the Advertising or any material to which users can link, or any products or services made available to users, through the Advertising or to which the Advertising relates. Further, Business agree to indemnify and hold Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of content Business submits, posts, transmits or makes available through the online or offline services provided by Company (collectively, the “Service”), or Business’ use of the Service, connection to the Service, violation of this Agreement, or violation of any rights of others.

 

9. Agency

Business further represents and warrants that, in the event it is purchasing advertising on behalf of another business, it has been authorized by each such business to act as its agent in all respects relating to the Service and this Agreement, including, without limitation, the making of any elections or giving of any consents. Without limiting the generality of the foregoing, Business agrees on behalf of each such business that such business has been made aware of these Terms and Conditions and shall be bound by all of the terms and conditions of this Agreement. Business and each such business shall be jointly and severally responsible under this Agreement.

 

10. Renewal

Renewal of any Campaign is subject to acceptance of the then current version of this Agreement and execution of a new Insertion Order. Unless waived by Company, in its sole discretion, any renewal shall be subject to Campaign Set Up Fees and any other fees applicable to new Campaigns.

 

11. Confidentiality

Business shall not disclose the contents or existence of this Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without Company’s prior written consent. Company shall be permitted to identify Business as a Company client and may use Business’s name in connection with Company’s marketing materials. Subject to the prior approval of each party, Company may elect to issue a joint press release announcing the Business’s marketing partnership with Company, which approval shall not be unreasonably withheld.

 

12. Termination

Company may immediately terminate Business’ account and access to the Service, with or without cause of any type or nature. Termination of Business’ account includes (a) removal of access to all offerings within the Service, (b) deletion of passwords and all related information, files and content associated with or inside the account (or any part thereof), and (c) barring further use of the Service. Except as expressly provided in this Agreement, Company shall not be liable to Business or any third-party for any termination of Business’ account or access to the Service. All provisions of this Agreement that by their sense or nature should survive termination of this Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall so survive. Without limiting the generality of the foregoing, in the event of any termination, Business shall remain liable for any amount due for Advertising delivered by Company. Limitation of Liability. (a) In the event that Company fails to publish an Ad in accordance with this Agreement, or in the event that Company fails to spend, on behalf of the Business, the full Campaign Media, or in the event of any other failure, technical or otherwise, of such Advertising, the sole liability of Company and exclusive remedy of Business shall be limited to, at Company’s sole discretion, the issuance of a Campaign Credit not to exceed the total Campaign Media spent.

 

(b) BUSINESS EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), REGARDLESS OF THE CAUSE OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SHALL HAVE NO LIABILITY FOR DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE OR THIS AGREEMENT. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR IN CONNECTION WITH ANY CAMPAIGN, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM BUSINESS FOR SUCH CAMPAIGN.

 

(c) Business agrees that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred; provided that this section shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.

 

(d) Without limiting the foregoing, Company shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of Company. Business acknowledges that Company has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.

 

13. General

(a) Business acknowledges that no Company personnel are authorized to make any modifications to these Terms and Conditions or to make any estimates that Business may rely on and that Business is not relying upon any such modifications or estimates or any representations, warranties or guarantees other than as expressly stated herein.

 

(b) This Agreement and the relationship between Business and Company shall be governed by the laws of the State of California applicable to contracts entered into and performed in California by residents thereof. Any action by either party hereto arising out of or in connection with this Agreement or the Service shall be brought in a court of competent jurisdiction located in the county of Los Angeles, state of California.

 

(c) This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may not be amended, supplemented or modified orally, but only by an agreement in writing signed by each of the parties hereto. In the event any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted.

 

(d) This Agreement may not be transferred, assigned, pledged or hypothecated by any party hereto, other than by operation of law. Any such purported transfer, assignment, pledge, or hypothecation (other than by operation of law) shall be void and of no force and effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.

 

(e) The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any party hereto irrespective of which party caused such provisions to be drafted.

 

In the event that Company’s website has any terms (including without limitation in any “click through” agreements) that are inconsistent with the provisions of this Agreement, this Agreement shall take precedence; provided, that any such agreements shall otherwise control with respect to any actions or activities outside of the domain of this Agreement.

 

 

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Do you have an existing PPC campaign?

No Yes - Google Yes - Yahoo Yes - Google & Yahoo Yes - Other Publisher

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Not Applicable Less Than 1 Hour 1-2 Hours 2-3 Hours 3-4 Hours More Than 4 Hours

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