Advertising Terms & Conditions
These BullsEye Internet Marketing (“Company”) Advertising Terms and Conditions (“Advertising Agreement”) are incorporated into and made a part of this Agreement if Business places an order for Advertising using the Service, either on behalf of its own business or on behalf of another business. Capitalized terms used herein but not otherwise defined herein shall have the meaning ascribed to such terms in the Account Terms and Conditions, of which this agreement is a part.
1. Definitions & Conditions.
Advertising: “Advertising” means the placing of Ads with Publishers using the Services.
Campaign: “Campaign” shall refer to the unit of Advertising for which Business has contracted with Company to place on the Business’ behalf. A Campaign shall have a budget, an actual start and end date, and shall consist of one or more ads placed at one or more publishers, each of which shall link through to a destination page. Each campaign shall be subject to this Agreement set herewith.
Order Date: “Order Date” shall refer to the date at which the request for Advertising is submitted to Company by Business – through the Platform, whether or not that Advertising order is accompanied by actual payment.
Campaign Budget: “Campaign Budget” shall refer to the maximum allowable amount that Business, by agreeing to this Agreement, has given permission to Company to spend on Business’ behalf for Advertising for a specific Campaign (not including any Campaign Management fees, which shall be paid by Business in addition to the Campaign Budget). Business agrees to pay in full for the Campaign Budget as provided below.
Publishers: “Publishers” shall refer to one or more online or offline businesses that accept Advertising orders from Company on behalf of the Business. Business agrees that the selection of Publishers is entirely at Company’s discretion and may change at any time, even while the Campaign is active. Business also agrees that Company may allocate some or all of Business’ Campaign Budget on Company’s Web Site.
Ads: “Ads” shall refer to one or more advertisements submitted by the Business using the Service, as such Ad may be modified as provided herein. Business agrees that Company may, at any time and for any reason, modify the Ads provided by Business to Company in order to comply with Publisher specifications or for any other reason. Business also agrees that Business’ modifications to Ads and/or Ad modification requests made by Business to Company once the Campaign order has been placed may not be processed, as some Publishers may not accept changes for Ads once a Campaign is active.
Visits: “Visits” shall refer to the number of times an Ad has been clicked on by someone viewing the Ad. Business agrees that all statistics pertaining to Visits and posted on the Company web site or sent through e-mail while the Campaign is running are preliminary and subject to change, either by Company or by the Publishers providing said statistics to Company. Business also agrees that, once the Campaign has ended, all statistics pertaining to Visits and posted on the Company web site or sent through e-mail are final and conclusive, and not subject to review or challenge, for all purposes of this Agreement.
Cost Per Visit: “Cost Per Visit” shall refer to the amount Company charges for each Visit. Business agrees that the Cost per Visit will vary by Publisher as well as many other variables, including but not limited to: (i) the time of day the Ad is clicked; (ii) the number of other advertisers purchasing advertising with Publisher; (iii) the nature of the products & services Business wishes to promote.
Actual Campaign Spend: “Actual Campaign Spend” shall refer to the sum of all Visits multiplied by their individual Cost per Visit. For example, if the Campaign has two Visits and the first Visit costs $1.00 and the second Visit costs $0.50, the Actual Campaign Spend will be $1.50 or ($1.00*1) + ($0.50*1). Actual Campaign Spend does not include any Campaign Management Fees (see below) that may or may not assessed at the time of the Advertising order.
Target Geographies: “Target Geographies” shall refer to the geographic areas the Business has requested that their Ads be displayed in. Business agrees that 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 those target geographies. Business agrees that Publishers may user varying ways to detect where people are from when determining whether to display an Ad, including, but not limited to: (i) IP targeting based on where users are accessing the Internet; (ii) user registration information at the Publisher sites; (iii) explicit geographic search queries made by the user. Accordingly, Business agrees that Company is in no way responsible for the accuracy of such methods for determining the geographic location of the people viewing Business’ Ads.
Target Duration: “Target Duration” shall refer to the number of days or months Business wishes the Campaign to run. Business agrees that Company shall have the right to extend the duration of the Campaign in the event the Actual Campaign Spend is less than the Campaign Budget, thereby extending the duration of the Campaign. Business agrees that Company may stop a campaign before the Target Duration has been reached in the event that the Actual Campaign Spend has reached or exceeded the Campaign Budget. Business also agrees that the Company may stop a campaign before the Target Duration has been reached in the event of any violation of this Agreement or in the event one or more Publishers refuses to continue running the Business’ Ads. In those cases where a Campaign is stopped and the Actual Campaign Spend is less than the Campaign Budget, please refer to the Cancellation and Refund Policy Section below.
Target Start Date: “Target Start Date” shall refer to the day the Business has requested that their Campaign begin. Business agrees and understands that Company needs to review all Campaigns prior to placing said Campaigns at Publishers. Business further agrees and understands that Company may take up to three (3) business days to complete said review and may, in fact, take longer if Company requires further input from Business. In the latter case, Company shall make reasonable efforts to contact Business to resolve any issues, but cannot guarantee when said issues will be resolved owing to the uncertain nature of reaching Business. In addition, Business agrees and acknowledges that Publishers may take several additional days to distribute the Campaign through their network and publications. Based on all of the above, Business agrees and acknowledges that Company shall have no liability hereunder or be deemed in breach hereof if the Actual Start Date is later than the Target Start Date.
Actual Start Date: “Actual Start Date” shall refer to the actual day that the Business’ Campaign begins running with one or more Publishers.
Target End Date: “Target End Date” shall refer to the Actual Start Date plus the Target Duration (in days). For example, the Target End Date will be July 15, 2004 if the Actual Start Date is July 1, 2004 and the Target Duration is 14 days.
Actual End Date: “Actual End Date” shall refer to the actual day that the Business’ Campaign has stopped running at all of the Publishers. As mentioned above, Business agrees that Company may extend the Actual End Date past the Target End Date in order to try and meet the Campaign Budget. Business agrees that the Company may stop a campaign before the Target Duration, with or without cause, upon notice, at which time the Actual End Date will be set to the date the campaign is stopped. Business agrees that even though Business may stop a campaign once it has started – subject to the Cancellation & Refund Policy as enumerated below – Company may be unable to stop the campaign at that moment in time with all Publishers. Business understands that Company will take reasonable efforts to stop the campaign with Publishers; Business agrees and acknowledges that the ability to terminate a Campaign rests solely with the Publisher. Accordingly, Business agrees that Actual End Date may be different from the date on which Business stops the campaign through the Platform.
Products & Services: “Products & Services” shall refer to the various business categories that the Business has selected to promote via the Platform. Business agrees that Company, while it will take all reasonable efforts to promote the Products & Services at the Publishers, makes no guarantee – financial or otherwise – that all Products & Services will be advertised, particularly if advertising all Products & Services will result in the Actual Campaign Spend exceeding the Campaign Budget.
Keywords: “Keywords” shall refer to individual words or word phrases that Company may purchase on behalf of Business to run at various Publishers. Business may – through the Platform – specify 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 will result in the Actual Campaign Spend exceeding the Campaign Budget. In addition, Business agrees that the rules for displaying Ads when certain Keywords are entered by a user at a Publisher are totally 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.
Tracking Information. “Tracking Information” shall refer to one or more of the following: (i) Phone Number Tracking; (ii) E-Mail Tracking; (iii) Coupon Tracking; (iv) Destination Page Tracking. 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. With regard to the Tracking Phone Numbers and Tracking E-Mail Addresses, 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 Tracking E-Mails, respectively, will forward to. Furthermore, Business acknowledges that, for local Business phone number, 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.
Phone Number Tracking: 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 call 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.
Destination Page: “Destination Page” shall refer to the Web Site that users will visit when they click on one of the Business’ Ads. Company currently provides two Destination Page options to Business for its Campaign: (i) “Standard Offer Page”; (ii) “Existing Web Site.”
i. With a Standard Offer Page, Company provides Business with the ability – through the Platform – to create a basic Web Site based on information provided by Business. Business agrees that Company may, from time to time, change the format of the Standard Offer Page, requiring the Business to add or delete information previously collected from the Business. Business agrees that Company may substitute Tracking Phone Numbers for the Business’ phone numbers on the Standard Offer Page, may substitute Tracking E-Mail Forms for the Business’ e-mail addresses, and may collect user information before allowing users to print Business’ coupons and offers. 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 the content substituted by Company as mentioned above – remains the sole responsibility of Business. Business agrees that all content on the Standard Offer Page complies with the Business’ Representation section below and otherwise with this Agreement.
ii. With an Existing Web Site, Business agrees that Company will direct all users who click on Business’ Ads to a Web Site 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’ web site as part of the Campaign ONLY: (i) substitute Tracking Phone Numbers for the Business’ web site phone numbers; (ii) substitute Tracking E-Mail forms for the Business’ web site e-mail addresses; (iii) place click tracking code on pages (URLs) specified by Business; (iv) place a frameset above the Business’ web site with the Tracking Phone Numbers and Tracking E-Mail form link; (v) place a frameset above the Business’ web site with links to the Company Web Site, including, but not limited to, the Company’s Local Offers Directory. Business agrees that users visiting the Business’ web site other than as a result of the Campaign will not see any of the above substitutions or modifications. Business agrees that in order for Company to be able to do so, Company may provide a mirrored version of the Business’ web site (“Mirrored Site”) and that, in order to do so, Business’ web site 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 web site address for the Mirrored Site and NOT that of the Business’ web site. Business agrees that Company is in no way responsible for the operation and functionality of the Business’ web site. Business agrees that all content on the Business’ existing web site complies with the Business’ Representation section below and otherwise with this Agreement.
Campaign Management Fees: “Campaign Management Fees” shall refer to the monthly amount charged by Company for managing Campaigns. These Campaign Management Fees are to be collected in addition to the Actual Campaign Spend and will be presented to the Business at the time the Advertising Order is placed. Company reserves the right to change the amount it charges for its Campaign Management Fees at any time, said changes to be presented to the Business at the time the order is placed.
Campaign Credits: “Campaign Credits” shall refer to any financial credits issued back to the individual Business user account responsible for placing the Campaign order as a result of Campaigns that have ended where the actual amount paid for any Campaign (excluding the Campaign Management Fee) exceeds the Actual Campaign Spend. Campaign Credits are credits to the individual Business user’s account and can be applied to future Campaigns for a period up to one (1) year after they are issued to the Business user. After one (1) year, Company reserves the right to limit the redemption of Campaign Credits. Please refer to the Cancellation & Refund Policy section below for further terms & conditions regarding the calculation and issuance of campaign credits.
Promotional Credits: “Promotional Credits” shall refer to one-time credits issued to the individual Business user account, which may be applied against the Campaign Budget to pay for the Campaign. Unlike Campaign Credits, Promotional Credits are not redeemable for cash and are further subject to the Account Terms & Conditions contained within this Agreement.
2. General. All rates (including Costs per Visit) are subject to change upon notice. Company reserves the right to refuse or cancel any Advertising, with or without cause, at any time.
3. Term of Advertising Agreement. The term of this Advertising Agreement commences on the Order Date and terminates on the Actual End Date or on the date that the last of the required deliverable items, including payment, are delivered to the Company, whichever is later.
4. Terms of Payment. Except as expressly provided below, payment for Advertising shall be made at the time the Advertising Order is placed with Company. At that time, Business will be responsible for paying for the full amount of the Campaign Budget and the sum of the Campaign Management Fees (the monthly Campaign Management Fees multiplied by the Target Duration, in months). Payment may be made by credit card, by check, or by electronic check. Business represents that it either owns or has been given permission to use the method of payment used to purchase Advertising and that Business, and not the Company, shall be responsible for the full amount of any unauthorized or illegal transactions, in addition to any other applicable fees or penalties. If Company elects, in the exercise of its sole discretion, it may agree to accept payment later than the time the Advertising Order is placed. In that event, Company shall submit invoices to Business for payment. Invoices will be mailed every month reflecting any campaign activity during that month.
Business shall pay all invoices submitted by Company within fourteen (14) days of the date of the invoice. Amounts due and owing by Business that are not paid when due shall bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) until paid in full. In the event of any failure by Business to make payment, 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.
5. Cancellations & Refund Policy. Business may cancel Campaigns by executing a “Stop Campaign” command through the Company’s web site only as provided in, and subject to the terms of, this Agreement. If Business cancels any Campaign, in whole or in part, Business shall pay (to the extent that it has not theretofore paid): (i) the Actual Campaign Spend up to the time Business cancels the Campaign, including any amounts spent thereafter notwithstanding Company’s efforts to terminate the Campaign (it being understood that, at the time that Business elects to cancel a Campaign, it may be too late to pull some scheduled advertisements), plus (ii) any early termination fees charged by any Publisher or other third party; plus (iii) the Campaign Management fees for each month the Campaign is active (for partial months, Business will owe a full month’s Campaign Management Fees); plus (iv) the amount of any Promotional Credit used to pay for any of the Campaign, plus (v) a Cancellation Fee. The Cancellation Fee is currently $50, and is subject to adjustments from time to time. If Business has paid more for a Campaign that it cancels than it is obligated to pay under this Section 5, Company will issue Business a Campaign Credit pursuant to Section 6 in the amount by which such actual payment exceeds the amounts owing under this Section 5.
6. Campaign Credits. Campaign Credits are issued to the individual who originally paid for the Campaign on behalf of Business, even if another individual cancels the Campaign. Campaign Credits may be used to purchase additional Advertising and will be deducted from the Campaign Budget at the time a subsequent Advertising order is placed. Campaign Credits are non-transferable. If a Business does not wish to use the Campaign Credits for a future Advertising order, the user who placed the Advertising order must, in writing, request a refund from Company – a request that is subject to the verification of the user’s identity by Company. All refunds will be issued to the individual who placed the Advertising order. If the Advertising order was paid for by credit card, the refund will be issued back to that same credit card; if that credit card is no longer valid, the Business forfeits its rights to the refund. If the Advertising order was paid for by check, electronic check, money order, or by cash, Company will mail a check in the amount of the Campaign Credit to the individual who placed the Advertising order. Once the written request for a refund has been received and verified by Company, Company agrees to mail check within thirty (30) days. Company is not responsible for checks lost in the mail, sent to an address that has not been correctly provided by Business, or made payable to a name that has not been correctly provided by Business.
7. Advertising Estimates. 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 Advertising. Any estimates provided by Company to Business are not intended to create any binding obligations or to be relied upon by Business. Business acknowledges that no Company personnel are authorized to make estimates that Business may rely on and that Business is not relying upon any such estimate or any such representation, warranties or guarantees.
8. Advertising Information, Materials & Modifications. Business shall provide Company with true, accurate and current information for all Ads placed with Publishers. Business certifies that it has the legal right to use all information, names, trademarks and search terms it provides or includes in its Ads. 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.
9. Publishers. Company shall determine, in the exercise of its sole discretion, which 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 Company’s 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.
10. Positioning. Except as otherwise expressly provided in this Agreement, positioning of Ads within the Company Directory or on any page of Company’s web site is at the sole discretion of Company. Positioning of Ads on Publisher sites is at the sole discretion of Publisher.
11. No Proof of Advertising. Business understands that Company is under no obligation and may simply not be able to provide any samples of your Ads in the context of any Publisher’s web site or Company’s Directory.
12. Statistics & Reporting. Unless specified otherwise in this Agreement, 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.
13. Renewal. Except as expressly set forth in this Agreement, any renewal of any Campaign is subject to acceptance of the then current version of this Agreement, which is subject to change at any time. From time to time, Company, at its sole discretion, may provide Business with the option to automatically renew (“Auto Renew”) a campaign. Business may choose from one of two different Auto Renew options. In the first option (“Auto Renew – Once per Month”), Business agrees that campaign will be automatically renewed and the Business charged as soon as the original campaign has reached its Campaign Budget and its Target Duration has been reached or exceeded. Business acknowledges that the campaign may be paused temporarily under this option once its Campaign Budget has been reached, but before its Target Duration has been reached. In the second option (“Auto Renew – Immediately”), Business agrees that campaign will be automatically renewed and the Business charged as soon as the original campaign has reached its Campaign Budget, whether or not its Target Duration has been reached, and even if its Target Duration has been exceeded. Business understands that Company, at its sole discretion, may set either Auto Renew option on as a default campaign setting, though, in the event Company sets the default to Auto Renew on (whether Auto Renew – Once per Month or Auto Renew – Immediately), Company will make available to Business the ability to turn the Auto Renew option off through Company’s web application.
14. No Assignment or Resale of Ad Space. 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.
15. Right to Reject Ads. 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 does not have any obligation to inspect ads or to reject ads that it inspects regardless of anything relating to those ads.
16. Business’s Representations; Indemnification. Business represents and warrants to Company that Business holds all necessary rights to permit the use of the Advertising by Company for the purposes contemplated under this Agreement; 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, you 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 you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of this Agreement, or your violation of any rights of another.
17. Confidentiality. “Confidential Information” shall mean (i) Ads, prior to publication, (ii) the Agreement and any Company statistics which shall be deemed Company Confidential Information, and/or (iii) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” During the term of this Agreement, and for a period of two years following any Official End Date, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this Section 17 by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority.
18. Press Releases. 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.
19. Termination. Company may immediately terminate your account and access to the Service, with or without cause of any type or nature, upon notice to you. Termination of your Company account includes (a) removal of access to all offerings within the Service, (b) deletion of your password and all related information, files and content associated with or inside your 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 you or any third-party for any termination of your 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 and any provisions that state that they survive) shall so survive. Without limiting the generality of the foregoing, in the event of any termination, Business shall remain liable for any amount due under the Advertiser Agreement for Advertising delivered by Company. At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information to the disclosing party.
20. LIMITATION OF LIABILITY. 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.
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 Budget by the Official End Date, 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 pursuant to Section 6. In no event shall Company be liable for any act or omission, or any event directly or indirectly resulting from any act or omission, of Third Parties (if any). 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.
21. Choice of Law and Forum. This Agreement and the relationship between you and Company shall be governed by the laws of the State of Florida applicable to contracts entered into and performed in Florida by residents thereof. Any claim by either party hereto against the other 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 Broward, state of Florida; provided that administrative and other non-judicial actions may be brought in any location.
22. Waiver and Severability of Terms. The failure of Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision to the extent possible under applicable law, and the other provisions of this Agreement remain in full force and effect.
23. Transferability. Business shall not assign, delegate or otherwise transfer any of its rights, obligations or duties of performance hereunder, and any purported assignment, delegation or other transfer in violation of this Section 23 shall be null and void. Company may assign, delegate or otherwise transfer any of its rights, obligations or duties of performance hereunder upon notice to Business in connection with any assignment, license or other transfer of any Company assets relating to the Service or any rights therein.
24. Statute of Limitations. You agree 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 (1) year after such claim or cause of action arose or be forever barred; provided that this Section 24 shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.
25. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
26. Destination Pages. Company may provide Business with a web site (“Destination Page”) as part of its Services. While Company will take reasonable measures to ensure that the Destination Page is generally accessible through the Internet, the Company does not warrant that Destination Page can be accessed (i) through all Internet browsers; (ii) through any device that can access the Internet. Nor does the Company warrant that the Destination Page can be accessible 24 hours a day and 7 days a week, whether or not the Company is hosting the Destination Page on its own servers or contracting with another business entity to provide the hosting services for those Destination Pages. Company shall have no liability in connection with any failure of availability or usability of any Destination Page or other Internet site.
27. Business acknowledges and agrees that the provisions of this Agreement that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this Agreement that are fundamental to the parties’ understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of this Agreement and shall be enforced regardless of any breach hereof or other occurrence or condition relating in any way to this Agreement or the Services. Without limiting the generality of the foregoing, Business agrees that all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause any exclusive remedy under this Agreement to fail of its essential purpose.
28. Agency Relationship. Business further represents and warrants that, in the event it is purchasing advertising on behalf of another business (“Advertiser”) it has been authorized by each Advertiser to act as such Advertiser’s agent in all respects relating to the Services 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 Advertiser that such Advertiser shall be bound by all of the terms and conditions of this Agreement and that, in particular, with regard to the Tracking Information section above, Business further warrants and represents that it has fully explained the different Tracking Information that may be obtained through the Advertising to each Advertiser and that each Advertiser has agreed to the terms contained therein.