Standard Terms and Conditions
1. General. Advertiser desires to procure from DMNmedia certain online Services for use in connection with the operation of Advertiser’s business. The Services may include, without limitation, the creation and maintenance of a business profile landing page in the DMNmedia online directory, search engine marketing, search engine optimization, social media management and integration, SMS and email marketing, and/or website development and hosting. Any selected Services must be specified in the Order. Advertiser may order additional Services from time to time by executing additional Orders. Advertiser acknowledges and agrees that the Services will be provided to Advertiser by DMNmedia’s third-party service provider (“Service Provider”) and/or such Service Provider’s third-party vendors (each a “Vendor”). DMNmedia’s provision, and Advertiser’s use, of all such Services are subject to the terms of this Agreement, including any Service-specific terms set forth in the Order.
2. Launch of Services. Upon execution of an Order, DMNmedia will submit the Order to its Service Provider for processing. Subject to DMNmedia receiving, in a timely fashion, any materials from Advertiser that are required to launch each applicable Service, DMNmedia will use commercially reasonable efforts to launch each such Service on behalf of Advertiser on a live basis within twenty (20) business days after the Order has been processed by DMNmedia’s Service Provider.
3. Proofs; Responsibility for Ads. Advertiser shall not be entitled to receive a proof of any display advertising (each an “Ad”) created in connection with any Services ordered under this Agreement. DMNmedia makes no representation or warranty that any Ad will not be similar to, or resemble, any other Ad that is produced by DMNmedia or its Service Provider. Notwithstanding the foregoing, to the extent Advertiser has purchased website development services pursuant to an Order, Advertiser will have the opportunity to review and approve such website prior to launch.
4. Placement. Positioning of Ads is at DMNmedia’s discretion. DMNmedia reserves the right to edit, revise, reject or cancel any Ad(s), space reservation or position commitment at any time. DMNmedia will make efforts to afford Advertiser the Ad position(s) desired; however, under no circumstances is position guaranteed and Ads must be paid for regardless of position.
5. No Guarantees. DMNmedia may reject any link embedded in any Ad. If, for any reason, DMNmedia, in its sole discretion, is unable to publish any Ad(s) in accordance with the terms of this Agreement or the applicable Order, DMNmedia will either (1) refund to Advertiser the amounts paid for such Ad(s) not published; (2) publish the Ad(s) at a later date, as reasonably determined by DMNmedia; or (3) publish the Ads in a different position, as determined by DMNmedia in its sole discretion.
6. License to Advertiser Materials; Publicity. Advertiser grants to DMNmedia a worldwide, non-exclusive, royalty-free license (with the right to sublicense to its Service Provider and/or such Service Provider’s Vendors) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute any all drawings, pictures, slogans, text, audio, video, or other content furnished by or on behalf of Advertiser under the applicable Order (collectively, “Advertiser Materials”) in the media and via the distribution methods expressly contemplated in the applicable Order. DMNmedia may modify or adapt the Advertiser Materials to the extent necessary to transmit, display or distribute it over computer networks and in various media and/or make changes to Advertiser Materials to the extent necessary to provide the Services and to conform and adapt the Advertiser Materials to any requirements or limitations of any networks, devices, services or media. Advertiser acknowledges and agrees that DMNmedia may use Advertiser’s results of Services in DMNmedia testimonials, videos and other advertisements that publicize DMNmedia services.
7. Delivery of Advertiser Materials. Advertiser will, at its expense, provide all Advertiser Materials necessary for DMNmedia and/or its Service Provider to provide the Services. Such Advertiser Materials will be provided in accordance with DMNmedia’s policies in effect from time to time, including, without limitation, policies regarding the manner of transmission to DMNmedia and the delivery time prior to publication of the Advertiser Materials. Advertiser acknowledges that Advertiser’s delay in delivering materials to DMNmedia by any applicable deadline may delay the launch date for the Services for which such materials are being provided. All expenses connected with the delivery to DMNmedia of advertising material or other web page content of Advertiser and any cost for return of such materials from DMNmedia will be paid by Advertiser. DMNmedia may dispose of any such materials delivered to it unless Advertiser has made acceptable prepaid return arrangements. DMNmedia will not be responsible for any material that is not properly displayed or that cannot be accessed or viewed because the material was not received by DMNmedia in the proper form, in a timely manner, or in an acceptable technical quality for display within the applicable DMNmedia locations. DMNmedia will not be liable for typographical errors, incorrect insertions or omissions in any Advertiser Materials displayed in connection with the Services.
8. Payment Terms. The fees for the Services are set forth in the Order. Fees must be paid in advance each month and in an amount equal to the Total Monthly Rate. Fees will be charged to the credit card and/or automatic checking account withdrawal identified in the Order unless Advertiser has made other arrangements with DMNmedia (provided that DMNmedia will be under no obligation to accept any form of payment other than credit card payments). Advertiser is responsible for ensuring that its credit card information is up to date at all times. By executing this Agreement, Advertiser hereby authorizes DMNmedia to charge Advertiser’s credit card for all applicable Services within two (2) business days after DMNmedia’s initial receipt of the Order, and monthly thereafter. Claims for errors in billing must be made by Advertiser within thirty (30) days after the due date for each applicable payment or such claims will be forfeited. Unpaid amounts will accrue interest at the rate one and one half percent (1.5%) per month, or the highest amount permitted by law, whichever is less, until such amounts are paid. In addition, Advertiser shall reimburse DMNmedia on demand for all reasonable costs and expenses incurred by DMNmedia in collecting any unpaid amounts (including, but not limited to, all fees and disbursements of counsel) and/or any collection agency of DMNmedia.
9. Taxes. Advertiser shall be responsible for all taxes, duties, fees and other governmental charges of any kind arising out or relating to the Services.
10. Termination. DMNmedia may, in its sole discretion, terminate this Agreement or suspend the Services in the event Advertiser fails to pay any amount owed hereunder when due and fails to cure such non-payment within fifteen (15) days following the due date. Without limiting the foregoing, DMNmedia may terminate this Agreement at any time, with or without cause, upon ten (10) days after written notice to Advertiser. This Agreement will automatically terminate, without notice (i) upon the institution by or against Advertiser of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of Advertiser’s debts; (ii) upon Advertiser making an assignment for the benefit of creditors; or (iii) upon Advertiser’s dissolution. Advertiser may terminate this Agreement in the event of a material breach by DMNmedia that remains uncured for a period of thirty (30) days following DMNmedia’s receipt of written notice of such breach from Advertiser.
11. Trademark License. Advertiser hereby grants DMNmedia and its Service Provider a non-exclusive, royalty-free, worldwide right and license to use the Advertiser Trademarks in connection with the Services. For purposes of this Agreement, “Advertiser Trademarks” mean those trademarks, trade names, service marks, slogans, designs, advertising, labels, logos, and other trade-identifying symbols as are or have been developed and used Advertiser or any of its subsidiaries or affiliate companies anywhere in the world. Nothing in this Agreement gives Advertiser any right to use the trademarks, trade names, service marks, slogans, designs, distinctive advertising, labels, logos, and other trade-identifying symbols as are or have been developed and used by DMNmedia or any of its subsidiaries or affiliate companies anywhere in the world, including, without limitation, in any advertisements, sales promotion, public announcements or press releases, without DMNmedia’s prior written approval in each instance.
12. Reservation of Rights. DMNmedia, in its sole discretion, may, at any time and for any reason, without notice, modify or remove or refuse to publish any Advertiser Materials from or on any platform over which the Services are distributed. Without limiting the foregoing, DMNmedia reserves the right to access, read, preserve, and disclose any Advertiser Materials or other information as DMNmedia reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of DMNmedia, its users and the public.
13. End User Information. Any data collected from or about end users of the Services or related to the Services shall be the property of DMNmedia. Advertiser shall have no rights in such information by virtue of this Agreement.
14. Advertiser Representations and Warranties. Advertiser represents and warrants that (i) the Advertiser Materials, Advertiser Trademarks, all website links that Advertiser requests that DMNmedia and its Service Provider include on a website or other Services developed under this Agreement, and all information (including, but not limited to, name, address and telephone number) furnished by Advertiser in connection with an Order: (a) are original, accurate, and complete, and shall comply with all applicable laws, rules, and regulations; (b) are not libelous or defamatory and do not violate or infringe the personal or proprietary rights of any person or other entity (including without limitation any patent, copyright, trademark, trade secret or other intellectual privacy or publicity); and (c) do not contain viruses or any other contaminants, or disabling devices including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, damage or disable the network or software of DMNmedia, its Service Provider or any Vendors, or any of their respective affiliates or Advertisers; (ii) it will comply with all federal, state and local laws and regulations applicable to the performance of its obligations hereunder and will obtain all applicable permits and licenses required of it in connection with its obligations hereunder; and (iii) it will avoid deceptive, misleading or unethical practices that could adversely affect the performance of DMNmedia’s obligations under this Agreement or, during the Term, damage the reputation of DMNmedia.
15. Indemnification. Advertiser agrees to defend, indemnify and hold harmless DMNmedia, its parent and affiliates, Service Provider, and each of their respective directors, officers, employees, contractors, agents and assigns, from and against any claim, loss, demand, cause of action, debt or liability, including reasonable attorneys’ fees resulting from a third-party claim arising out of: (i) any Advertiser Materials provided by Advertiser for use by DMNmedia and/or its Service Provider under this Agreement, including, without limitation, any claim that any such Advertiser Materials are libelous or defamatory or violate or infringe the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any rights of privacy or publicity; (ii) the breach or alleged breach of any representation or warranty made by Advertiser in this Agreement, or (iii) any claim relating to Advertiser’s products or services.
16. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” DMNMEDIA, ITS SERVICE PROVIDER AMD ANY VENDORS SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO ADVERTISER OR ANY OTHER PERSON WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY ADVERTISER MATERIALS OR OTHER MATERIAL DISPLAYED ON ADVERTISER’S WEBSITE(S) OR THE FAILURE TO DISPLAY ANY SUCH MATERIALS ON DMNMEDIA’S WEBSITE(S). DMNMEDIA DOES NOT REPRESENT OR WARRANT THAT ANY SERVICES, ADS OR OTHER MATERIAL WILL BE DISPLAYED ON ANY DMNMEDIA WEBSITE WITHOUT INTERRUPTION OR ERROR.
17. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL DMNMEDIA, ITS SERVICE PROVIDER, ANY VENDOR, OR ANY OF THEIR RESPECTIVE AFFILIATES BE LIABLE TO ADVERTISER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA OR LOST PROFITS. IN NO EVENT SHALL DMNMEDIA’S, SERVICE PROVIDER’S OR ANY VENDOR’S LIABILITY TO ADVERTISER OR ANY THIRD PARTY UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT, OR UNDER ANY OTHER LEGAL THEORY EXCEED THE AMOUNT ACTUALLY PAID BY ADVERTISER TO DMNMEDIA UNDER THIS AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EVEN IF ANY REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
18. Force Majeure. Any delay in or failure of performance by DMNmedia will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of DMNmedia, including, but not limited to, public emergency or necessity, restrictions imposed by law, acts of God, war, riot, strikes, power outages, or failures of the Internet.
19. Modifications to this Agreement. DMNmedia reserves the right to amend or revise the terms of any Order and/or this Agreement (including the Order) at any time upon thirty (30) days after written notice to Advertiser. If such amendments or revisions are to material terms of this Agreement and are not acceptable to Advertiser, Advertiser may cancel this Agreement without penalty or liability by providing written notice to DMNmedia within such thirty (30) day period.
20. Miscellaneous. Advertiser acknowledges and agrees that the terms set forth in Sections 15, 16, 17, and 18 and the terms in the Order, are for the benefit of DMNmedia, its Service Provider and Service Provider’s Vendors, and that Service Provider and such Vendors are intended third-party beneficiaries under this Agreement and may enforce those provisions directly against Advertiser or through DMNmedia. The parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, or an agency relationship between the parties. Advertiser may not assign or transfer this Agreement without the prior written consent of DMNmedia. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflicts-of-laws rules. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. Sections 5, 8, 9, 12, 13, 14, 15, 16, 17, 19, and 20 will survive any termination, expiration or cancellation of this Agreement.