Traffic Generator Service Agreement
These Advertising Terms and Conditions (the "Terms") together with the terms of any online advertising package order form ("Order") referencing these Terms constitute a legally binding and enforceable advertising services agreement ("Agreement") between the person or entity submitting the Order (hereinafter referred to as "you") and eNom. Each capitalized terms used herein that is not defined will have the meaning stated on the Order. In the event the applicable Order conflicts with any provision of these Terms, the Order will prevail to the extent there is an express conflict.
- Services. Based on the content and information you provide to eNom when you submit your Order including but not limited to your business name, URL(s), business contact information, descriptions and selected categories (collectively, "Business Content") and subject to these Terms, eNom will provide you advertising services specified on the applicable Order and/or defined herein (collectively "Services"). eNom or its authorized Vendors will submit advertisements ("Ads") featuring your Business Content to major search engines, directories and other websites relevant to your business that are owned and operated by us or by third party distribution partners in eNom's distribution network (collectively, "Network"). The Ads may be placed or delivered throughout the Network and you hereby authorize and consent to all such placements. eNom's or its authorized Vendors' submission of Business Content to third party distribution partners shall be subject to the terms and conditions established from time to time by such distribution partners. eNom reserves the right to reject any Business Content in its sole discretion.
- Term. As consideration for the Traffic Generator, you agree to pay, prior to the effectiveness of the Traffic Generator Services, the applicable fees. All fees are non-refundable, in whole or in part. At eNom's option, eNom may require that you pay fees through a particular payment means (such as by credit card or wire transfer) or that you change from one payment provider to another. eNom reserves the rights and sole discretion to modify its pricing at any time, if desired by eNom.
- The applicable package pricing rate is set forth on the Order. You authorize eNom to charge your credit card for any amount owed under this Agreement. eNom may notify you each time your credit card is charged. Termination of this Agreement and/or payment of late fees shall not prejudice any other rights or remedies that eNom may have with respect to nonpayment. You agree that you will be responsible for all reasonable expenses and attorneys' fees eNom may incur to collect payments owed.
- Calculations. You hereby acknowledge and agree that eNom is solely responsible for tracking and calculating the performance, delivery, and other metrics in connection with the Services, including without limitation: leads, page views, calls or other actions delivered and all other traffic measurements and data. You further understand and agree that such measurements and data will be the only and definitive measure thereof. Notwithstanding the foregoing, eNom may be subject to the tracking data and calculations of certain distribution partners. Additionally, in an effort to detect, identify, and eliminate low quality traffic (including that generated by automated tools, robots or other deceptive software) from the Network, eNom or its Vendors may make use of filtering and monitoring techniques. You agree to notify eNom within five (5) days after the end of the month prior of any discrepancies in your account. In the event that you do not notify eNom within such five (5) day period after the end of the month, such claims or disputes will be waived and any charges will be final and not subject to dispute. Subject to the foregoing, the resolution of any dispute will be determined by eNom in its sole discretion, and eNom has no obligation to provide a particular remedy.
- Permissions; Responsibilities; and Restrictions.
- You hereby irrevocably grant eNom, its distribution partners, licensees and authorized Vendors, the non-exclusive right to use reproduce, modify, create derivatives of, publicly display and perform, distribute and otherwise fully exploit all parts of the Business Content (and derivatives thereof), the Ads as well as your trademarks, service marks, trade names, logos, and other identifiers ("Marks") in any form of online or offline media (whether now existing or hereafter created) solely in connection with providing the Services and taking such actions as are necessary for the purposes of tracking and reporting the performance results of your advertising campaign. You hereby authorize and consent to the delivery of the Ads to any distribution partner that eNom deems relevant to your business and you authorize eNom to use your trade name to register Vanity URL(s) for the purpose of hosting your web page. To the extent Ads are placed on distribution partner websites or search engines, eNom or its authorized Vendors shall be deemed your transaction agent, with express authority to enter into such distribution partner agreements as may be necessary to provide the Services. Upon eNom's request, you agree to provide to any interested party a written confirmation of such agency relationship.
- eNom may modify, replace, or supplement keywords based on quality search practices, industry standards, or performance issues, including without limitation the use of methodologies that correct misspellings, combining singular and plural terms and filtering inappropriate terms. eNom reserves the right to update and change these methodologies in its sole discretion. Furthermore, you acknowledge and agree that any Ad shall be subject to any additional standards, practices and/or methodologies employed by a distribution partner. eNom shall be authorized (but shall have no obligation) to make such changes to the Ads and related keywords to comply with any distribution partner requirements or restrictions.
- You shall not have the right to re-assign the CTN or to use it other than as explicitly set out herein without eNom's prior written consent. All CTNs remain the property of eNom or of its authorized Vendors pursuant to agreements with various telephone carriers and vendors, and are made available to you solely for use in accordance with the terms and conditions of this Agreement. Upon expiration or termination of this Agreement, all your rights to use of the CTNs and the Services shall cease absolutely and you shall not thereafter distribute or sell any materials whatsoever bearing a CTN provided hereunder. You acknowledge and agree that the use of the CTN hereunder may be further limited by, among other factors, changes to telephone carrier terms, changes in carrier relationships, guidelines recommended by Federal, provincial or local regulators, or changes to applicable law and regulation from time to time.
- You may not remove or export from your jurisdiction or allow the export or re-export of the Services or anything related thereto in violation of any applicable export control or similar restrictions, laws or regulations. eNom is not a telephone company. eNom or its authorized Vendors purchase telecommunications services and use such services to provide enhanced service products to you. If at any time eNom's right to allocate CTNs or otherwise provide the Services to you is impaired or regulated by any governmental or quasi-governmental entity, including, without limitation, the U.S. Federal Trade Commission, the U.S. Federal Communications Commission or any state public utility commission, eNom shall have the right to terminate, suspend or amend this Agreement automatically upon written notice. eNom shall have no liability or obligation to you of any kind arising out of such a termination, suspension or change in the Services, as the case may be.
- Representations. You hereby represent, warrant and covenant to eNom during the term of this Agreement that: (i) you are the authorized owner or representative of your business; (ii) this Agreement constitutes a valid and binding agreement enforceable against you in accordance with its terms; (iii) any information you have provided or will provide in connection with this Agreement and any corresponding Order is and will be both accurate and complete; and (iv) you hold all the necessary rights and/or licenses to permit eNom to perform the Services in connection with the Business Content you submit, the Business profile page, your web site(s), including its content, the Marks, names and any other materials therein.
- Indemnification. You agree to indemnify, defend and hold eNom, its parent company and affiliated companies, its Vendors and any of their respective officers, directors, employees, representatives and agents, from and against all claims, actions, liabilities, losses, expenses, damages and costs (including without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings for, including without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Business Content, your web site(s) or contents therein, or associated therewith, or your breach of any term, condition, agreement, representation or warranty hereunder. You will not enter into any settlements in any matters arising under this Section 6 without eNom's prior written consent and eNom will have the right to participate in any defense of a claim and/or to be represented by counsel of eNom's choosing at its own expense.
- Disclaimer; Limitation of Liability. ALL SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN eNom AND ITS VENDORS DISCLAIM ALL WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES, OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. eNom further disclaims all guarantees regarding positioning, levels, quality, or timing of availability and delivery of any impressions or Ad on any website in the Network; conversions or other results for any Ads; (v) the accuracy of distribution partner data; and the placement of Ads within the Network. You understand that third parties may generate impressions or clicks on Ads for prohibited or improper purposes, and you accept the risk of any such impressions and clicks. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER eNom NOR ITS VENDORS WARRANT OR GUARANTEE THAT THE SERVICES OR OPERATION THEREOF WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS. NEITHER eNom NOR VENDORS WILL HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF DATA, LOSS OF PROFITS, INCOME, GOODWILL OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL eNom's OR ITS VENDORS' LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT YOU PAID TO eNom FOR THE SERVICES DURING THE THREE (3) MONTHS PRECEDING THE BASIS FOR LIABILITY.
- Miscellaneous. If any provision in this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and without being impaired or invalidated in any way. You shall not assign this Agreement or any right, interest or benefit under this Agreement without eNom's prior written consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of both parties and their respective heirs, executors, administrators, successors and permitted assigns. This Agreement and any applicable Orders constitute the entire agreement between the parties relating to the Services. Any notice required or permitted by this Agreement will be given in writing and will be deemed given as of the day they are received either by messenger, delivery service or certified mail, postage prepaid, and (i) if to eNom, addressed to 15801 NE 24th St. Bellevue, WA 98008 USA (ii) if to you, sent to the email address stated on the corresponding Order. This Agreement shall be governed by and construed according with the laws of the State of Washington without regard to its conflict of laws rules. You hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in King County, Washington with respect to any action, claim or proceeding arising out of or relating to this Agreement. This Agreement supersedes all prior and/or contemporaneous Agreements with respect to the same subject matter, and you agree that you have relied upon no representations, oral or otherwise, not contained within this Agreement. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation, acts of God, government, terrorism, natural disasters, labor conditions, power failures, failure of internet carrier lines. You acknowledge and agree that third parties with whom eNom may contract from time to time in order to provide the Services (collectively "Vendors") are intended third party beneficiaries to this Agreement and may enforce their rights hereunder directly against you. eNom reserves the right to change the terms to this Agreement by posting such changes on eNom's website. Your continued use of the Services following such changes shall be deemed to be continued acceptance of this Agreement including its amendments and modifications. Sections 2, 3, and Sections 6-8 shall survive termination, along with any provision that might reasonably be deemed to survive such termination.