Terms & Conditions
These Terms and Conditions (these “General Terms”) and each applicable Schedule hereto govern and are incorporated into each order or other order confirmation referencing or attaching these General Terms and entered into between SEO Analytics Local d/b/a SEO Be Found Local (“Publisher”), and the customer named in such invoice or order confirmation (“Advertiser”).
1. Services; Invoices; Binding Terms.
(a) Advertiser has engaged Publisher to provide services (“Services”) in connection with one or more digital products identified in an (i) Invoice subscription submitted to Publisher, (ii) Invoice accepted by Advertiser electronically, and/or (iii) order confirmation form delivered to Advertiser by Publisher following Advertiser’s subscription agreement to purchase such Services via online subscription form(s) (in each case, the “Invoice”), subject to these General Terms and each applicable Schedule hereto setting forth additional terms and conditions with respect to Services identified in the Invoice (“Service Terms”). BY TAKING ANY OF THE ACTIONS DESCRIBED IN THE FOREGOING CLAUSES (i), (ii) OR (iii), Advertiser EXPRESSLY ACKNOWLEDGES AND AGREES TO THE APPLICABLE Service 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 SUBSCRIBER TO RESOLVE DISPUTES WITH PROVIDER ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION.
(b) Advertiser acknowledges 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 agree to these General Terms and Service 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 Invoice referencing or attaching these General Terms, together with all applicable Service 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 Invoice and the General Terms or Service Terms, the General Terms or Service Terms will prevail. In the event of any conflict or inconsistency between any Service Terms and these General Terms, such Service Terms will prevail with respect to the applicable Service. Notwithstanding the foregoing or anything to the contrary in this Agreement, NOTHING IN AN Invoice OR SERVICE SERVICE 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 Services is necessary or desirable, in Publisher’s reasonable determination, due to changes to Services or the Invoice 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 Service 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 Invoice 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.
2. Cancellations
(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 cancellation@seoanalyticslocal.com 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 Service(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 Invoices or agreements between the parties.
(b) Without relieving Advertiser of the obligations and responsibilities hereunder, including Advertiser’s obligation to pay for ordered Services, Advertiser may cancel a Product or Service during or at the end of a Minimum Term or Renewal term (as defined below) by providing Publisher written notice of cancellation. Such notice must be sent by an authorized representative of Advertiser, either by email delivered to cancellation@seoanalyticslocal.com as set forth in Section 20. Any such cancellation notice must (i) clearly identify the Advertiser and the authorized individual requesting the cancellation on behalf of the Advertiser, (ii) expressly identify the particular Service intended for cancellation, and (iii) express a clear intention to cancel the Service.
(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 Service(s) under the Invoice, 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 Service(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 Service(s) purchased by Advertiser.
(e) In addition, Publisher may terminate this Agreement or cancel any specific Service(s) under the Invoice, or suspend Services in connection with any Service, 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 Service (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 Services subject to an Invoice.
(f) Notwithstanding any cancellation of any Services 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 Services not cancelled shall remain in full force and effect, as though the cancelled Services 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 Service(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 Services. Following termination of this Agreement or cancellation of a Service, 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 Service Terms with respect to an applicable Service), any Content (as defined below) or other data or information created, collected or developed for, by or on behalf of Advertiser, including 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 Service Term (defined in the Invoice) under the Invoice or earlier termination hereof in accordance with this Agreement. Unless another term is specified on the Invoice or in Service Terms with respect to a particular Service, or unless a different term is specified on the Invoice or in Service Terms upon renewal (“Renewal Term”) the term of service for each Service (“Minimum Term”) is 12 months from the Acceptance Date. The “Service Term” for a particular Service shall be each applicable Minimum Term, Renewal Term or other term of service set forth in the Invoice. (b) Unless either party provides notice of termination or non-renewal, Publisher may extend the term of service for one or more Services for a reasonable period in Publisher’s sole discretion without additional charge to Advertiser (“Term Extension”) in order to ensure continuing Advertiser or public access to the Service(s) and in order to facilitate informed communication between Advertiser and Publisher regarding the pending expiration, intentional cancellation, or affirmative renewal of the Service(s). During such an unpaid Term Extension, the services provided by Publisher may not, in Publisher’s sole discretion, include all of the services described in the applicable Service Terms but Advertiser agrees that all service provided by Publisher during a Term Extension shall be subject to the then-current General Terms available at www.seobefoundlocal.com/terms-%26-conditions . In the event that the parties do not affirmatively renew the term of service, the term of service for a Service shall expire at the end of the later of the last date of the Minimum Term, any Renewal Term, or when Publisher ceases to provide services without charge under a Term Extension.
5. Payment.
(a) Advertiser shall pay Publisher the amounts shown on the Invoice or any payment plan agreed to by the parties (“Payment Plan”) (which is incorporated herein by reference); provided that, for any Renewal Terms, unless otherwise specified on an Invoice, Advertiser shall pay Publisher the monthly rate for the Service at a cost representing one twelfth of the full, un-discounted, unbundled Service rate set forth on the Invoice (or in the case of a Service with a Minimum Term of less than 12 months, a pro-rated price for each 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 Invoice 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 Services 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 Invoice, Payment Plan or invoice, Advertiser shall pay Publisher (or, if applicable, Publisher may charge or debit Advertiser), (i) in connection with SEO visibility services; (ii) in connection with domain name or domain hosting; and (iii) in connection with all other Services, within 30 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 Invoice. In the event that the Advertiser has an unpaid balance from a previously purchased Service, or if Advertiser contracts with Publisher for multiple Services, 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 Service 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 Service Term. In the event that Advertiser’s scheduled credit card payment under an Invoice or Payment Plan for any Service Term is declined, Advertiser agrees to pay a $15 collection activity fee in addition to the amount owed. Advertiser HEREBY RELEASES PROVIDER 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 Services that are the subject of this Agreement or any other agreement between Publisher and Advertiser, through the end of the then-current Service Term(s) for those Services, 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.
7. Service Modifications.
Publisher may, at any time (including during a Service Term), unilaterally modify (a) the scope of Services, specifications, components, or attributes of a particular Service, (b) any “Terms of Use” or “Privacy Policy” applicable to a Service, (c) the conditions to renew or utilize a particular Service, or (d) other policies applicable to a Service; provided that such modifications are made in good faith and deemed necessary or desirable, in Publisher’s the sole discretion, (i) to continue to fulfill Advertiser’s objectives in purchasing the Service, and (ii) in order for Publisher to continue providing effective and inexpensive local marketing assistance to Advertiser. Notice of a change described in any of the foregoing clauses (a) through (d) may be communicated by any means deemed appropriate by Publisher, including through email, telephone call or course of business conduct.
8. Actions Taken on Behalf of Advertiser.
(a) In connection with Publisher’s provision of Services in connection with applicable Services (including a BE PROFOUND™ Service 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, video hosting 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 Service involves creating, updating, posting and/or managing messages, notifications, news, alerts, announcements or updates, event information, offers or other promotions (“Posts”) or other Content (including Video 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 Service in the reasonable discretion of Publisher (each a “Registration”). (b) Advertiser hereby appoints Publisher, during each Service 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 Service Term in order to provide Services in connection with the Service, 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 Service. (d) If Advertiser wishes to access or review Registration Communications, then during the applicable Service Term, and for a period of 60 days following the termination of this Agreement or expiration or cancellation of such Service, 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 Service, and (ii) may delete such content following the expiration or cancellation of the last Service Term applicable to such Service or termination of this Agreement.
9. Content.
(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 Services, 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 Services, 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 (309) 323-8789, 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 Services as set forth in the Invoice and applicable Service 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 Services 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, review 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 Services, 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 Services pursuant to, and as contemplated by, this Agreement, Publisher permits Advertiser to access, operate, or use such Publisher Property during each applicable Service Term, solely for such purpose. Without limiting any other restrictions set forth herein, except as expressly authorized hereunder in connection with the Services, Advertiser will not reproduce, disassemble, decompile, decrypt, extract, reverse engineer, modify, sell, share, resell, use, or otherwise exploit any Publisher Property or any other Services, 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 Services or Publisher’s other activities in connection with this Agreement. In particular, and without limitation, Publisher may use images, photos, fonts, or other design elements in the Services which are licensed from third parties in a manner that permits Publisher and Advertiser to use them only nonexclusively and in a manner that does not violate the terms of such a third party’s licensing agreement, for instance and without limitation, by attempting to register a trademark incorporating such licensed content. To the extent that Publisher uses such content in providing Services or services to Advertiser, Advertiser agrees that such use is at Advertiser’s sole risk, that Publisher disclaims all liability for Advertiser’s use of images, photos, fonts or other design elements in any Services, and that Publisher makes no representations or warranties of any kind concerning the images, photos, fonts or other design elements licensed from third parties, express, implied, statutory or otherwise, including without limitation warranties of title, merchantability, fitness for a particular purpose, or non-infringement. Publisher agrees that it shall not use photos, images, fonts or other design elements licensed from third parties in the provision of services for Advertiser in the event that Advertiser so directs Publisher in a written notice that conforms with the requirements of Section 20 herein. (d) Any information, content or materials submitted by third parties and collected, transmitted or published through or in connection with a Service (“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, Rich Content Website or other website, or landing page, or other method; and in any format) and consumer inquiries and leads (such as those submitted by consumers on a Rich Content 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 Services (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.
12. Data
(a) Advertiser authorizes Publisher and its Third-Party Suppliers to track and collect data on Advertiser’s behalf, regarding the performance of the Services provided to Advertiser hereunder, including data regarding the volume, type and quality of consumer interactions with the Services and any other analytics associated with the Services (“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 Services or processing of data under the Agreement.
13. Use of Services.
Advertiser warrants and covenants that it will not use the Services 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 Services, and conduct all of its activities in connection with use of the Services, 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 Services 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 Services, or to monitor the use of Services 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, Services, 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 Services; (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 Services; or (vii) any bodily injury or loss of property claimed to result from any act or omission of Advertiser.
15. Disclaimers
(a) Advertiser’s purchase and use of the Services, and any reliance by Advertiser upon the Services, 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 SERVICES 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 SERVICES 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 SERVICES, OR THAT THE SERVICES WILL MEET SUBSCRIBER’S OR ANY THIRD PARTY’S REQUIREMENTS OR SATISFACTION; (III) THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED; OR (IV) THAT THE SERVICES WILL BE FREE OF ERRORS, DEFECTS, OR VIRUSES. (b) Without limiting the foregoing, Publisher MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH REGARD TO ANY THIRD-PARTY SERVICE OR SERVICE, INCLUDING PLATFORMS. Advertiser acknowledges that (i) Publisher is not affiliated with third-party Platforms; (ii) Publisher has no control over or responsibility for how third parties, including third-party Platforms (such as, without limitation, Google or any other search engine, portal, or third-party hosting or search platform or Facebook or any other social media site), will use or display Content, or respond to Publisher’s activities in connection with the Services, including Registrations, Posts and promotional or marketing efforts with respect to Advertiser; (iii) a third-party Platform may, at any time, change any of its terms of use or service or applicable policies or requirements (collectively, “Platform Terms”), or the application or enforcement thereof, or any features, functionality, or availability of services, including related to Publisher’s ability to continue providing applicable Services (“Platform Changes”); and (iv) Publisher does not and cannot control or guarantee the use, display, page rank, or optimization of Content, or sites containing Content, by search engines, social media sites, or other Platforms, or by consumers, or that Advertiser’s use of a Service will result in a positive customer response or any particular improvements in search engine rankings, or page one rank. (c) Advertiser ACKNOWLEDGES THAT Publisher USES, OR MAY USE, THIRD PARTY SUPPLIERS TO PROVIDE HARDWARE, SOFTWARE, NETWORKING AND RELATED TECHNOLOGY REQUIRED TO RENDER THE ServiceS 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 Services; (II) any representation or warranty regarding either the number of people or households who will receive, access, or view the Services; (III) any representation concerning the quantity or quality of calls, visits, or online interactions with or leads generated by the Services; (IV) any prior course of dealing; or (V) the results of other business’s experience with the Services that Publisher may have shared with Advertiser. Advertiser ACKNOWLEDGES AND AGREES THAT THE ENTIRE RISK ARISING OUT OF THE USE OF THE ServiceS, 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 Service 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 PROVIDER BE LIABLE TO SUBSCRIBER 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 PROVIDER 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 PROVIDER’S LIABILITY ARISING OUT OF THE AGREEMENT EXCEED THE FEES PAID TO PROVIDER BY SUBSCRIBER FOR THE PARTICULAR SERVICE OUT OF WHICH A CLAIM FOR LIABILITY AROSE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBSCRIBER HEREBY WAIVES, AND AGREES TO WAIVE, ANY CLAIM FOR DAMAGES TO THE EXTENT THAT SUCH DAMAGES EXCEED THIS AMOUNT. (c) IN NO EVENT SHALL PROVIDER BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY LOSSES OR CLAIMS ARISING OUT OF OR RELATING TO THE PERFORMANCE OR USE OF SUBSCRIBER’S GOODS OR SERVICES OR ANY ACT OR OMISSION OF SUBSCRIBER 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 PROVIDER BE LIABLE TO SUBSCRIBER 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 SUBSCRIBER TO APPLY TO ANY CLAIM THAT SUBSCRIBER HAS AGAINST PROVIDER, together with PROVIDER’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) PROVIDER’S ACCEPTANCE OF THIS AGREEMENT AND THE RATES CHARGED FOR THE SERVICES ARE BASED UPON THE LIMITATIONS OF THE PROVIDER’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 (309) 323-8789 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 Judicial Circuit Court in McLean County, Illinois. (b) Except for such actions initiated by Publisher to collect amounts due under this Agreement, ANY CLAIM, CONTROVERSY, OR DISPUTE BETWEEN PROVIDER AND SUBSCRIBER 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, SUBSCRIBER AND PROVIDER 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: SEO Be Found, 1106 Henry St, Normal, Illinois 61761, 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 McLean 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 McLean 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/or voice, and testimonials regarding, or endorsements of, Publisher as part of Publisher’s advertisements, promotional efforts, 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 Service to become unachievable, or (g) other factors, forces or circumstances outside of Publisher’s reasonable control affecting the Service.
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 SEO Be Found, LLC, 1106 henry St, Normal, IL 61761, Attn: Chief Operating Officer, or (b) to Advertiser at Advertiser’s address set forth on any Invoice, or by email to an email address provided by Advertiser to Publisher on the Invoice, 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. Continuing Use or Purchases without Additional Agreement Documentation.
In any of the following circumstances, the parties expressly intend that the use of the Services by Advertiser and the provision of Services by Publisher shall be subject to these General Terms and applicable Service Terms (a) in the event that Advertiser continues to use any Service or Content related to a Service provided by Publisher after the expiration or cancellation of the Service Term (or expiration or termination of this Agreement) without paying; (b) if Advertiser orders and pays Publisher in whole or in part for Services described in this Agreement but does not enter into an Invoice (or Publisher fails to record the order or fails to return an accepted Invoice to Advertiser but nonetheless accepts payment or performs services in rendering the Service); 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.
22. Miscellaneous.
(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 Services reflected on the Invoice (except Advertiser’s oral agreement to purchase the Services 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 “Service” in this Agreement shall in all cases include the Services provided by Publisher in connection with the applicable products and/or services, 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.
COPIED VERSION FROM NOTES ON 6/3/23 –
Terms & Conditions
These Terms and Conditions (these “General Terms”) and each applicable Schedule hereto govern and are incorporated into each publishing order or other order confirmation referencing or attaching these General Terms and entered into between SEO Be Found Local LLC (“Publisher”), and the customer named in such invoice or order confirmation (“Advertiser”).
1. Services; Invoices; Binding Terms.
(a) Advertiser has engaged Publisher to provide services (“Services”) in connection with one or more digital products identified in an (i) Invoice subscription submitted to Publisher, (ii) Invoice accepted by Advertiser electronically, and/or (iii) order confirmation form delivered to Advertiser by Publisher following Advertiser’s subscription agreement to purchase such Services via online subscription form(s) (in each case, the “Invoice”), subject to these General Terms and each applicable Schedule hereto setting forth additional terms and conditions with respect to Services identified in the Invoice (“Service Terms”). BY TAKING ANY OF THE ACTIONS DESCRIBED IN THE FOREGOING CLAUSES (i), (ii) OR (iii), Advertiser EXPRESSLY ACKNOWLEDGES AND AGREES TO THE APPLICABLE Service 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 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 agree to these General Terms and Service 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 Invoice referencing or attaching these General Terms, together with all applicable Service 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 Invoice and the General Terms or Service Terms, the General Terms or Service Terms will prevail. In the event of any conflict or inconsistency between any Service Terms and these General Terms, such Service Terms will prevail with respect to the applicable Service. Notwithstanding the foregoing or anything to the contrary in this Agreement, NOTHING IN AN Invoice OR SERVICE SERVICE 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 Services is necessary or desirable, in Publisher’s reasonable determination, due to changes to Services or the Invoice 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 Service 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 Invoice 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.
2. Cancellations
(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 cancellation@seoanalyticslocal.com 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 Service(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 Invoices or agreements between the parties.
(b) Without relieving Advertiser of the obligations and responsibilities hereunder, including Advertiser’s obligation to pay for ordered Services, Advertiser may cancel a Product or Service during or at the end of a Minimum Term or Renewal term (as defined below) by providing Publisher written notice of cancellation. Such notice must be sent by an authorized representative of Advertiser, either by email delivered to cancellation@seoanalyticslocal.com as set forth in Section 20. Any such cancellation notice must (i) clearly identify the Advertiser and the authorized individual requesting the cancellation on behalf of the Advertiser, (ii) expressly identify the particular Service intended for cancellation, and (iii) express a clear intention to cancel the Service.
(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 Service(s) under the Invoice, 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 Service(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 Service(s) purchased by Advertiser.
(e) In addition, Publisher may terminate this Agreement or cancel any specific Service(s) under the Invoice, or suspend Services in connection with any Service, 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 Service (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 Services subject to an Invoice.
(f) Notwithstanding any cancellation of any Services 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 Services not cancelled shall remain in full force and effect, as though the cancelled Services 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 Service(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 Services. Following termination of this Agreement or cancellation of a Service, 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 Service Terms with respect to an applicable Service), any Content (as defined below) or other data or information created, collected or developed for, by or on behalf of Advertiser, including 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 Service Term (defined in the Invoice) under the Invoice or earlier termination hereof in accordance with this Agreement. Unless another term is specified on the Invoice or in Service Terms with respect to a particular Service, or unless a different term is specified on the Invoice or in Service Terms upon renewal (“Renewal Term”) the term of service for each Service (“Minimum Term”) is 12 months from the Acceptance Date. The “Service Term” for a particular Service shall be each applicable Minimum Term, Renewal Term or other term of service set forth in the Invoice. (b) Unless either party provides notice of termination or non-renewal, Publisher may extend the term of service for one or more Services for a reasonable period in Publisher’s sole discretion without additional charge to Advertiser (“Term Extension”) in order to ensure continuing Advertiser or public access to the Service(s) and in order to facilitate informed communication between Advertiser and Publisher regarding the pending expiration, intentional cancellation, or affirmative renewal of the Service(s). During such an unpaid Term Extension, the services provided by Publisher may not, in Publisher’s sole discretion, include all of the services described in the applicable Service Terms but Advertiser agrees that all service provided by Publisher during a Term Extension shall be subject to the then-current General Terms available at www.seobefoundlocal.com/legal/SALGeneralTerms&Conditions. In the event that the parties do not affirmatively renew the term of service, the term of service for a Service shall expire at the end of the later of the last date of the Minimum Term, any Renewal Term, or when Publisher ceases to provide services without charge under a Term Extension.
5. Payment.
(a) Advertiser shall pay Publisher the amounts shown on the Invoice or any payment plan agreed to by the parties (“Payment Plan”) (which is incorporated herein by reference); provided that, for any Renewal Terms, unless otherwise specified on an Invoice, Advertiser shall pay Publisher the monthly rate for the Service at a cost representing one twelfth of the full, un-discounted, unbundled Service rate set forth on the Invoice (or in the case of a Service with a Minimum Term of less than 12 months, a pro-rated price for each 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 Invoice 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 Services 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 Invoice, Payment Plan or invoice, Advertiser shall pay Publisher (or, if applicable, Publisher may charge or debit Advertiser), (i) in connection with SEO visibility services; (ii) in connection with domain name or domain hosting; and (iii) in connection with all other Services, within 30 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 Invoice. In the event that the Advertiser has an unpaid balance from a previously purchased Service, or if Advertiser contracts with Publisher for multiple Services, 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 Service 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 Service Term. In the event that Advertiser’s scheduled credit card payment under an Invoice or Payment Plan for any Service 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 Services that are the subject of this Agreement or any other agreement between Publisher and Advertiser, through the end of the then-current Service Term(s) for those Services, 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.
7. Service Modifications.
Publisher may, at any time (including during a Service Term), unilaterally modify (a) the scope of Services, specifications, components, or attributes of a particular Service, (b) any “Terms of Use” or “Privacy Policy” applicable to a Service, (c) the conditions to renew or utilize a particular Service, or (d) other policies applicable to a Service; provided that such modifications are made in good faith and deemed necessary or desirable, in Publisher’s the sole discretion, (i) to continue to fulfill Advertiser’s objectives in purchasing the Service, and (ii) in order for Publisher to continue providing effective and inexpensive local marketing assistance to Advertiser. Notice of a change described in any of the foregoing clauses (a) through (d) may be communicated by any means deemed appropriate by Publisher, including through email, telephone call or course of business conduct.
8. Actions Taken on Behalf of Advertiser.
(a) In connection with Publisher’s provision of Services in connection with applicable Services (including a BE PROFOUND™ Service 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, video hosting 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 Service involves creating, updating, posting and/or managing messages, notifications, news, alerts, announcements or updates, event information, offers or other promotions (“Posts”) or other Content (including Video 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 Service in the reasonable discretion of Publisher (each a “Registration”). (b) Advertiser hereby appoints Publisher, during each Service 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 Service Term in order to provide Services in connection with the Service, 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 Service. (d) If Advertiser wishes to access or review Registration Communications, then during the applicable Service Term, and for a period of 60 days following the termination of this Agreement or expiration or cancellation of such Service, 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 Service, and (ii) may delete such content following the expiration or cancellation of the last Service Term applicable to such Service or termination of this Agreement.
9. Content.
(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 Services, 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 Services, 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 (309) 323-8789, 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 Services as set forth in the Invoice and applicable Service 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 Services 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, review 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 Services, 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 Services pursuant to, and as contemplated by, this Agreement, Publisher permits Advertiser to access, operate, or use such Publisher Property during each applicable Service Term, solely for such purpose. Without limiting any other restrictions set forth herein, except as expressly authorized hereunder in connection with the Services, Advertiser will not reproduce, disassemble, decompile, decrypt, extract, reverse engineer, modify, sell, share, resell, use, or otherwise exploit any Publisher Property or any other Services, 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 Services or Publisher’s other activities in connection with this Agreement. In particular, and without limitation, Publisher may use images, photos, fonts, or other design elements in the Services which are licensed from third parties in a manner that permits Publisher and Advertiser to use them only nonexclusively and in a manner that does not violate the terms of such a third party’s licensing agreement, for instance and without limitation, by attempting to register a trademark incorporating such licensed content. To the extent that Publisher uses such content in providing Services or services to Advertiser, Advertiser agrees that such use is at Advertiser’s sole risk, that Publisher disclaims all liability for Advertiser’s use of images, photos, fonts or other design elements in any Services, and that Publisher makes no representations or warranties of any kind concerning the images, photos, fonts or other design elements licensed from third parties, express, implied, statutory or otherwise, including without limitation warranties of title, merchantability, fitness for a particular purpose, or non-infringement. Publisher agrees that it shall not use photos, images, fonts or other design elements licensed from third parties in the provision of services for Advertiser in the event that Advertiser so directs Publisher in a written notice that conforms with the requirements of Section 20 herein. (d) Any information, content or materials submitted by third parties and collected, transmitted or published through or in connection with a Service (“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, Rich Content Website or other website, or landing page, or other method; and in any format) and consumer inquiries and leads (such as those submitted by consumers on a Rich Content 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 Services (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.
12. Data
(a) Advertiser authorizes Publisher and its Third-Party Suppliers to track and collect data on Advertiser’s behalf, regarding the performance of the Services provided to Advertiser hereunder, including data regarding the volume, type and quality of consumer interactions with the Services and any other analytics associated with the Services (“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 Publisher 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 Services or processing of data under the Agreement.
13. Use of Services.
Advertiser warrants and covenants that it will not use the Services 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 Services, and conduct all of its activities in connection with use of the Services, 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 Services 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 Services, or to monitor the use of Services 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, Services, 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 Services; (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 Services; or (vii) any bodily injury or loss of property claimed to result from any act or omission of Advertiser.
15. Disclaimers
(a) Advertiser’s purchase and use of the Services, and any reliance by Advertiser upon the Services, 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 SERVICES 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 SERVICES 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 SERVICES, OR THAT THE SERVICES 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 SERVICES WILL BE SECURE OR UNINTERRUPTED; OR (IV) THAT THE SERVICES WILL BE FREE OF ERRORS, DEFECTS, OR VIRUSES. (b) Without limiting the foregoing, Publisher MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH REGARD TO ANY THIRD-PARTY SERVICE OR SERVICE, INCLUDING PLATFORMS. Advertiser acknowledges that (i) Publisher is not affiliated with third-party Platforms; (ii) Publisher has no control over or responsibility for how third parties, including third-party Platforms (such as, without limitation, Google or any other search engine, portal, or third-party hosting or search platform or Facebook or any other social media site), will use or display Content, or respond to Publisher’s activities in connection with the Services, including Registrations, Posts and promotional or marketing efforts with respect to Advertiser; (iii) a third-party Platform may, at any time, change any of its terms of use or service or applicable policies or requirements (collectively, “Platform Terms”), or the application or enforcement thereof, or any features, functionality, or availability of services, including related to Publisher’s ability to continue providing applicable Services (“Platform Changes”); and (iv) Publisher does not and cannot control or guarantee the use, display, page rank, or optimization of Content, or sites containing Content, by search engines, social media sites, or other Platforms, or by consumers, or that Advertiser’s use of a Service will result in a positive customer response or any particular improvements in search engine rankings, or page one rank. (c) Advertiser ACKNOWLEDGES THAT Publisher USES, OR MAY USE, THIRD PARTY SUPPLIERS TO PROVIDE HARDWARE, SOFTWARE, NETWORKING AND RELATED TECHNOLOGY REQUIRED TO RENDER THE ServiceS 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 Services; (II) any representation or warranty regarding either the number of people or households who will receive, access, or view the Services; (III) any representation concerning the quantity or quality of calls, visits, or online interactions with or leads generated by the Services; (IV) any prior course of dealing; or (V) the results of other business’s experience with the Services that Publisher may have shared with Advertiser. Advertiser ACKNOWLEDGES AND AGREES THAT THE ENTIRE RISK ARISING OUT OF THE USE OF THE ServiceS, 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 Service 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 SERVICE 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 SERVICES 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 (309) 323-8789 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 Judicial Circuit Court in McLean 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: SEO Be Found, 1106 Henry St, Normal, Illinois 61761, 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 McLean 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 McLean 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/or voice, and testimonials regarding, or endorsements of, Publisher as part of Publisher’s advertisements, promotional efforts, 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 Service to become unachievable, or (g) other factors, forces or circumstances outside of Publisher’s reasonable control affecting the Service.
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 SEO Be Found, LLC, 1106 henry St, Normal, IL 61761, Attn: Chief Operating Officer, or (b) to Advertiser at Advertiser’s address set forth on any Invoice, or by email to an email address provided by Advertiser to Publisher on the Invoice, 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. Continuing Use or Purchases without Additional Agreement Documentation.
In any of the following circumstances, the parties expressly intend that the use of the Services by Advertiser and the provision of Services by Publisher shall be subject to these General Terms and applicable Service Terms (a) in the event that Advertiser continues to use any Service or Content related to a Service provided by Publisher after the expiration or cancellation of the Service Term (or expiration or termination of this Agreement) without paying; (b) if Advertiser orders and pays Publisher in whole or in part for Services described in this Agreement but does not enter into an Invoice (or Publisher fails to record the order or fails to return an accepted Invoice to Advertiser but nonetheless accepts payment or performs services in rendering the Service); 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.
22. Miscellaneous.
(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 Services reflected on the Invoice (except Advertiser’s oral agreement to purchase the Services 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 “Service” in this Agreement shall in all cases include the Services provided by Publisher in connection with the applicable products and/or services, 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.
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