Terms and Conditions
Marketing Services Terms & Conditions Date Last Modified: May 11, 2016
On The Move Marketing dba On The Move Marketing (“OTMM” or “On The Move Marketing”) provides a wide range of marketing products, processes and services for local and corporate businesses through its website, Videos, PDF’s and other means (collectively, “Marketing Services”). OTMM’s Marketing Services may be ordered by a customer (“Advertiser/Company”) via a Proposed Offer (PO) or website purchase, which can be provided to Advertiser/Company as a printed document or an electronic quote or may also be provided through Advertiser’s/Company’s selection of Marketing Services directly through the On The Move Marketing’s Website ordering page (any of these means hereafter referred to as a Proposed Offer “”). The PO sets forth: (a) which Marketing Services are being purchased by Advertiser/Company; (b) the costs for the Marketing Services; and (c) other relevant details of the Marketing Services, (collectively referred to as, the “Campaign”). Advertiser’s/ Company’s agreement to the PO also constitutes its agreement to be bound by these Marketing Services Terms and Conditions (this “Agreement”). Advertiser’s/Company’s agreement to a PO, payment for any Marketing Services and/or use of any of the Marketing Services constitutes its binding agreement to all of the terms of the PO and this Agreement.
This Agreement is incorporated by reference into and made a part of any PO between On The Move Marketing and Advertiser/Company and shall govern the relationship between On The Move Marketing and Advertiser/Company. All PO’s are subject to acceptance by On The Move Marketing, in its sole discretion. Acceptance of a PO by On The Move Marketing will occur upon On The Move Marketing’s confirmation at its sole discretion that all information provided by Advertiser/Company is complete and correct. On The Move Marketing may withdraw acceptance of any PO at its sole discretion at any time.
On The Move Marketing reserves the right to amend, modify or restate this Agreement from time to time at its sole discretion (“Amendments”). On The Move Marketing shall provide notification of the Amendments by updating the “Date Last Modified” set forth above. It is Advertiser’s/Company’s responsibility to periodically review this Agreement for the Amendments and view the current dates. Advertiser’s/Company’s continued use of any of the Marketing Services after the posting of the Amendments is deemed acceptance of this Agreement and the Amendments thereof.
For purposes of this Agreement, all references to “days” will be measured in “calendar days”, unless otherwise noted.
Standard Marketing Services.
“Standard Marketing Services” include, but are not limited to, the following:
- On The Move Search. This service is On The Move Marketing’s standard search engine marketing product, where On The Move Marketing promotes Advertiser/Company through various search engines and creates landing pages and processes. This service is also called “Search Engine Marketing.”
- On The Move Peace Of Mind. This service is a monthly report that is submitted to the Advertiser/Company which covers current website status and errors. On The Move Marketing will deliver a report of current issues that the Advertiser/Company can fix.
- On The Move Marketing Retargeting Display. This service is On The Move Marketing’s behavioral targeting product that enables On The Move Marketing to display an ad to consumers who have previously evidenced interest in services or similar products or services. This service is also called “Retargeting.”
- On The Move Stand Out Website. This service is On The Move Marketing’s web service product, where On The Move Marketing has created, designed and will host websites for the Advertiser/Company. Unless otherwise set forth in the PO, Stand out Packages require a 1 year commitment, with a month to month term following the first year.
- On The Move Item Empowerment Website. This service is On The Move Marketing’s web service product, where On The Move Marketing has created, designed and will host websites that have the ability to display items without a checkout or shopping cart. This service allows you to have call to actions on each item to send them to your Shop/Company. Item Empowerment Website Packages require a 1 year commitment, with a month to month term following the first year.
- On The Move Marketing ECommerce. This service is On The Move Marketing’s online store and website creation and development service, where On The Move Marketing creates, designs, programs a custom ECommerce development.
- On The Move PowerListings. This service is On The Move Marketing’s local business directory service, where On The Move Marketing will create and claim available business presence listings on select directories. This service is also called “PowerListings.”
- On The Move Custom Logo. This service is On The Move Marketing’s creating a custom logo for an Advertiser/Company to use in all of their online and offline promotions. This service is also called “Custom Logo.”
- Bundled Packages. On The Move Marketing offers combinations of the Marketing Services in bundled packages for a single, monthly price.
Advertiser/Company acknowledges and agrees that On The Move Marketing reserves the right to use third party service providers to support and/or supply some or all of the technology, platforms, content and/or other products/services for use in connection with the Marketing Services provided in this Agreement. Some third party service providers may require acceptance of their separate terms and conditions, which will be identified in the PO, and
Advertiser/Company must agree to those additional terms and conditions in order to use those services.
Online Advertising and Listing Services.
- Placement. On The Move Marketing shall determine, in its sole discretion, on which online properties (the “Publisher”) the marketing content (“Ads”) will run during the course of the Campaign involving On The Move Search, On The Move Marketing Display and Retargeting Display . Advertiser acknowledges that On The Move Marketing does not operate or control the Publisher (Google, Yahoo, Yelp, Bing, etc…) – with the exception of properties owned or operated by On The Move Marketing or its affiliates. On The Move Marketing is not responsible for any Publisher’s website, policies, practices or terms and conditions. Advertiser/Company further acknowledges that at any time during the Campaign, the Publisher mix may change. On The Move Marketing makes no guarantees about when or where the Ads will be displayed by the Publisher or by On The Move Marketing.
- Geotargeting. On The Move Marketing will use commercially reasonable efforts to place Ads such that they will be seen by consumers in the target locales identified during the Campaign initiation process, but On The Move Marketing does not guarantee that Advertiser/Company Ads will only be displayed in the target locales.
- On The Move Marketing Properties and Third Party Directories. On The Move Marketing may create and post online in the directories of third parties, profile page(s) for Advertiser/Company, which may include the following information regarding Advertiser/Company: name, phone number, email address, physical address and information regarding the products or services of Advertiser/Company (the “Local Profile”).
- Campaign SetUp Period. Advertiser/Company acknowledges and agrees that, with respect to the Marketing Services, On The Move Marketing may take up to fourteen (14) business days or longer to review and prepare the Campaign (or longer, if On The Move Marketing has been asked to provide creative services or if On The Move Marketing experiences technical difficulties with Advertiser’s/Company’s Campaign and may require further input from Advertiser/Company before the Campaign is distributed to the Publisher. The Publisher may then take additional time to commence dissemination of the Campaign. These time periods are, collectively, the “SetUp Period”. The SetUp Period will commence upon On The Move Marketing’s receipt and acceptance of a PO signed by Advertiser/Company’s decision maker..
- Notice Period. During the SetUp Period, On The Move Marketing may send certain deliverables in draft form (the “Proof”) via email, or Proof programs to Advertiser/Company for its review and approval. Advertiser/Company agrees to provide written notice to On The Move Marketing either approving or rejecting the Proof (in whole or in part) within five (5) business days from the date of receipt of the Proof (the “Notice Period”). On The Move Marketing may
send a gallery of templates via email to Advertiser/Company for its review and selection. Advertiser/Company agrees to provide written template selection within the Notice Period. Advertiser/Company acknowledges and agrees that TIME IS OF THE ESSENCE/THE OUTCOME CAN DEPEND ON IT with respect to approving or rejecting the Proof, or selecting a template from the gallery, within the Notice Period. If Advertiser/Company fails to provide written response within the Notice Period, the Proof will be deemed “approved” by Advertiser/Company and/or On The Move Marketing will use its best judgment to select an appropriate template for the Advertiser/Company.
- Campaign Cycles. The Campaign Period (as defined below and as set forth on the PO) for certain Marketing Services, including, but not limited to, On The Move Search, On The Move Display and Retargeting Display , will consist of one or more “Campaign Cycles”. The Campaign Cycle for these Marketing Services is defined as the period of time from On The Move Marketing’s commencement of applying the Budget (as defined below) until such time as no less than 98% of the Budget has been utilized. While, on average, this is approximately a thirty (30) day period, On The Move Marketing makes no guarantees with respect to the time it takes to fully utilize the Budget. Advertiser/Company acknowledges that all statistics provided by On The Move Marketing evidencing such utilization shall be conclusive and binding on Advertiser for all purposes of this Agreement.
- GoLive Period. Once the SetUp Period is complete, and the Campaign is completed and ready to “golive,” certain Advertiser/Company login information or domain name information may be required to “golive”. If the information has been requested, and a written response is not received within five (5) business days of the request, the Campaign will be deemed fulfilled. If at a future date, the login information or domain name information is received from The Advertiser/Company, the Campaign may, at On the Move Marketing’s sole discretion be made live upon Advertiser’s/Company’s payment of a Reactivation Fee. For website design, redirect code will be forwarded to the client with the instructions on how the Advertiser/Company can implement the product themselves, and product will be deemed fulfilled and billed.
- Advertiser/Company Responsibilities The Advertiser/Company acknowledges that On The Move Marketing’s ability to provide the Marketing Services is dependent upon the full and timely co-operation of the Advertiser/Company (which the Advertiser/Company agrees to provide), as well as the accuracy and completeness of any information and data the Advertiser/Company provides to On The Move Marketing. Accordingly, the Advertiser/Company shall provide On The Move Marketing with timely communication and timely access to, and use of, all information, data and documentation reasonably required by On The Move Marketing for the performance by On The Move Marketing of its obligations under this Agreement, and Advertiser/Company shall be responsible for the accuracy and completeness of information, data, and documentation. Each party shall appoint a project manager who shall provide professional and prompt liaison with the other party and have the necessary expertise and authority to commit the relevant party.
Descriptions of Fees.
- Monthly Fee. “Monthly Fee”, as set forth on the PO, refers to the fee associated with each of the Standard Marketing Services.
- Budget. “Budget”, or “Cycle Payment” as set forth on the PO, refers to the monthly dollar spend designated for each of the Campaign Cycles during the Campaign Period. Advertiser/Company acknowledges and agrees that the Budget is measured by the total number of clicks and/or the total number of impressions used. On The Move Marketing Pay Per Click charges 30% of total budget per cycle. A Standard cycle is 31 days or less of total PO budget agreement.
- Campaign SetUp Fee. “Campaign SetUp Fee” refers to a onetime fee for the setup of a Campaign, which can include, but is not limited to, the Publisher set up, keyword generation, creative services and other similar setup requirements. With respect to On The
Move Search, the Campaign SetUp Fee also includes a review of the Campaign within the first sixty (60) days of the Campaign.
- Onetime Product Fees: “Onetime Product Fees,” as set forth on the PO, refers to a onetime cost to purchase a Marketing Service.
Reactivation Fee: A Reactivation Fee to be charged to Advertiser/Company in the event Company fails to provide the information necessary in accordance with Section 3(c), and later desires to provide the necessary information to activate the Campaign.
Termination Fee: A Termination Fee to be charged to Advertiser/Company in the event Advertiser/Company fails to comply with Section 4 and On The Move Marketing terminates this Agreement in accordance with the terms contained herein, or as further described in the Termination section of this Agreement.
- Additional PO Fees: Additional fees as set forth in the PO in accordance with the Marketing Services ordered by Advertiser/Company.
- On The Move Marketing reserves the right to change any of the foregoing fees at any time, provided that, such changes will not take effect until: (i) a new PO has been agreed between Advertiser/Company Marketing; or (ii) the renewal of an existing PO after implementation of the new fees.
- No PassThrough Obligations. Advertiser/Company is not entitled to any credits, discounts, rebates, refunds or any other amounts provided to On The Move Marketing by a Publisher or any third party.
- Discount Credits. If On The Move Marketing offers any special promotions which provide Advertiser/Company with discounts, credits or any other fee reduction incentives in connection with any PO (the “Discount Credits”) and: (i) Advertiser/Company terminates such PO then Advertiser/Company will be required to repay to On The Move Marketing, within ten (10) days of such termination, the full amount of the Discount Credits used by Advertiser/Company.
- Once a PO has been accepted by On The Move Marketing, Advertiser/Company will be responsible for payment of all fees set forth therein, except as may otherwise be provided in this Agreement. All payments due hereunder are in U.S. dollars and are exclusive of any sales, use or similar applicable taxes, which shall be the sole responsibility of Advertiser/Company.
- Method and Timing of Payment.
- Method of Payment. Advertiser/Company may pay for all amounts payable under this Agreement by: (A) credit card (the “Advertiser/Company Card”); or (B) receiving an invoice, at On The Move Marketing’s sole discretion. If paying by credit card, Advertiser will be required to sign and comply with the applicable payment authorization forms. In the event Advertiser receives an invoice, all amounts will be due upon Advertiser’s/Company receipt of the invoice.
- Timing of Payment.
- Timing. Advertiser/Company acknowledges and agrees that all amounts owed must be paid in advance of each Campaign Cycle and that, in addition to being in breach of this Agreement, Advertiser’s/Company’s Campaign may be suspended or terminated if timely payment is not made. If Advertiser/Company has authorized payment by Advertiser’s/Company Card, such authorization permits On The Move Marketing to recover any Discount Credits (as set forth above) in the authorized manner, and to process all payments for ongoing or additional services or products and any other amounts owed pursuant to a PO or this Agreement via such Advertiser’s/Company’s Card.
- Initial Payment. Advertiser shall pay: (I) the Cycle Payment for the initial Campaign Cycle; and (II) if applicable, the Campaign SetUp Fees, on or before the commencement of the SetUp Period.
- Subsequent Payments. All subsequent Cycle Payments will be made no later than three (3) days prior to the start of the applicable Campaign Cycle.
- Ongoing Payments. In order to avoid any pauses in the Campaign associated with the Standard Marketing Services, Advertiser/Company authorizes On The Move Marketing to cause payment to be made, via Advertiser’Company Card or other chosen method of payment, for the upcoming Campaign Period when seventyfive percent (75%) of the Budget for the current Campaign Period has been exhausted.
- Payments for Other Products and Services. For all other products and services elected by Advertiser/Company, Advertiser/Company authorizes On The Move Marketing to cause payments to be made, via Advertiser/Company Card or other chosen method of payment, within seven (7) days prior to the expiration of the applicable Campaign Cycle.
- Late Charge. Any amounts not paid by Advertiser/Company when due shall be subject to a late charge equal to one and onehalf percent (1.5%) per month (or the highest rate permitted by law, if less). Advertiser agrees to pay all costs of collection (including attorneys’ fees and costs and all other legal and collection expenses) incurred by On The Move Marketing in collecting payments under the PO and/or this Agreement.
- Term. Campaign Period set forth on the applicable PO (the “Initial Campaign Period”), unless terminated sooner as provided herein, or extended by renewal.
- Termination by On The Move Marketing. On The Move Marketing may terminate any Campaign, without cause, upon written or email notice.
- Termination by Advertiser/Company. Advertiser/Company may terminate the Campaign during the Initial Campaign Period upon sixty (60) days prior written or email notice to On The Move Marketing in accordance with this Agreement, Unless the PO has been written as a Term Commitment as defined on the PO
No other means of termination by Advertiser/Company will be valid. If the cancellation is received during the Initial Campaign Period, the Advertiser/Company may still be subject to the Early Termination Payment outlined below.
- Termination For Cause. Either party may terminate the PO and/or this Agreement on thirty (30) days prior written notice (the “Notice Period”) if the other party is in material breach of its obligations under the PO and/or this Agreement and such breach has not been substantially cured by the conclusion of the Notice Period. If On The Move Marketing terminates for cause, Advertiser/Company may be subject to a Termination Fee as set forth in a PO.
No other means of termination by Advertiser/Company will be valid. The Advertiser acknowledges and agrees that it will be responsible for any obligations accrued through the effective termination date, and early termination of any On The Move Standout Website, On The Move Item Empowerment Website, or On the Move Marketing Ecommerce Marketing Service will, in addition to any obligations accrued through the effective termination date, result in a Termination Fee.
- Campaign Pauses. Advertiser/Company may request a pause in a Campaign. However, it shall be in On The Move Marketing’s sole discretion to determine if a Campaign pause is appropriate. If a Campaign is paused for more than thirty (30) consecutive days, Advertiser/Company will have to pay an additional Campaign SetUp Fee to restart the Campaign.
- No Refunds. Advertiser acknowledges and agrees that it will not be entitled to any refunds of amounts already paid to On The Move Marketing.
- Effect of Termination; Survival. Advertiser/Company acknowledges and agrees that due to the nature of the internet, certain information regarding Advertiser/Company that will be posted on the internet as part of the Standard Marketing Services may remain on the internet after termination. All provisions of this Agreement that by their sense or nature should survive termination of the PO (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall so survive. Without limiting the generality of the foregoing, in the event of any termination, Advertiser shall remain liable for any amounts due to On The Move Marketing as of the effective date of termination.
- Early Termination Payment. In the event Advertiser/Company terminates the PO and/or this Agreement, without cause, prior to the expiration of the Initial Campaign Period, any unpaid portion of the monthly fees set forth on the PO, shall become immediately due and payable (the “Early Termination Payment”).
- Automatically Renewing Campaign Periods. As indicated on the PO, certain Marketing Services and Bundled Packages will automatically renew (a “Renewal Campaign Period”). The Initial Campaign Period for such Marketing Services and Bundled Packages shall automatically renew for additional periods of the same duration as the Initial Campaign Period, unless Advertiser provides sixty (60) days prior signed, written notice.
If the cancellation is received during the Initial Campaign Period, the Advertiser may still be subject to the Early Termination Payment. Only automatically renewed Campaign Periods are considered “Renewal Campaign Periods” for purposes of the exclusion. The Initial Campaign Period and any Renewal Campaign Period shall be collectively referred to herein as the “Campaign Period”.
- Other Campaign Period Renewals. Any Marketing Services that are not subject to automatic renewal will require execution of a new PO by Advertiser/Company in order to renew, and any early termination of the Campaign Period for such Marketing Services will be subject to the Early Termination Payment.
- Budget. The Budget will automatically renew for the same Budget set forth on the PO. The Budget will not automatically renew after the expiration of the Campaign Period. In the event there is an unused portion of the Budget after the expiration of the Campaign Period, the Campaign Period will be extended until such Budget is consumed.
Advertiser Data; On The Move Marketing Platform.
- Advertiser/Company Data. As part of the Campaign initiation process and from time to time during the Campaign, Advertiser/Company will provide certain information to On The Move Marketing (the “Advertiser Data”), which On The Move Marketing will input into one or more third party webbased marketing platforms (the “Platform”). Accordingly, Advertiser hereby permits On The Move Marketing to input Advertiser/Company Data, including, without limitation, Advertiser/Company contact information, credit card or ACH information and Campaign information, into the Platform. The Platform will also include various metrics for tracking the Campaign (“Tracking Services”). On The Move Marketing will only use such information in connection with the fulfillment of the Standard Marketing Services and as otherwise permitted
by the PO and this Agreement. In addition, On The Move Marketing may, from time to time, send Advertiser/Company emails regarding Platform updates, Campaign updates, payment reminders, and marketing opportunities relating to On The Move Marketing and its commercial partners. Advertiser/Company agrees to receive such emails. Should Advertiser/Company choose to opt out of receiving such emails, Advertiser/Company may notify On the Move Marketing of such opt out by emailing INSERT EMAIL ADDRESS.
- License to Platform. Upon execution of the PO, Advertiser/Company will be granted a revocable, nontransferable, nonexclusive, limited license to use the Platform solely for the purpose of accessing the Tracking Services. Advertiser’s/Company’s access shall be password protected and Advertiser/Company agrees that it shall not share its password with third parties or otherwise provide access to the Platform to third parties. If the security of Advertiser’s/Company’s username(s) or password(s) is compromised in any way, or if Advertiser/Company or its agent suspects that it may be, Advertiser/Company shall immediately contact On The Move Marketing. On The Move Marketing is not responsible for any loss or damage suffered by the compromise of any password. Advertiser/Company acknowledges and agrees that it does not have, nor will it claim any right, title or interest in the Platform, the Platform software, data, applications, methods of doing business or any elements thereof, or any content provided on the Platform. Advertiser/Company may only access the Platform via a Web browser or in a manner otherwise approved by On The Move Marketing. Advertiser/Company will not attempt in any way to reverse engineer, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Platform. On The Move Marketing may terminate the foregoing license, at any time and for any reason. Use of the Platform may be subject to additional terms and conditions required by the third party provider.
- In connection with all On The Move Standout Websites, On the Move Item Empowerment Websites, and On The Move Monetary Ecommerce Marketing Services, all Intellectual Property Rights in the Site (including in the content of the Site and the Site Software), but excluding the Materials, arising in connection with this Agreement shall be the property of On The Move Marketing, and On The Move Marketing hereby grants Advertiser/Company a non-exclusive license of such Intellectual Property Rights for the purpose of operating the Site. For purposes of this Agreement, “Site” shall mean the website to be hosted by On The Move Marketing pursuant to this Agreement; Site Software means any software for the Site commissioned by Advertiser/Company as specified in a PO; Materials means the content provided to On The Move Marketing by Advertiser/Company from time to time for incorporation in the Site; Intellectual Property Rights means rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), Site design, development, code, and layout, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Standard Marketing Services Content; Creative Services; Keywords.
- Standard Marketing Services Content.
- General Content. Advertiser will deliver all content required for Standard Marketing Services to On The Move Marketing within five (5) days from the execution of the PO. If such content does not conform to On The Move Marketing’s or any Publisher’s specifications, then On The Move Marketing or the Publisher may, in its sole discretion, modify or reject such content to meet the Publisher’s or other technical requirements or to address Campaign performance issues. If rejected, On The Move Marketing will then refund any applicable amounts paid in advance. Advertiser acknowledges and agrees that On The Move Marketing shall not be liable for typographical errors, incorrect insertions or omissions in any of the content provided.
- Ad Content. Advertiser/Company will deliver all content required for any Ad to On The Move Marketing within five (5) days from the execution of the PO. If such content does not conform to On The Move Marketing’s or any Publisher’s specifications, then On The Move Marketing or the Publisher may, in its sole discretion, modify or reject such content to meet the Publisher’s or other technical requirements or to address Campaign performance issues. If rejected, On The Move Marketing will then refund any applicable amounts paid in advance. Advertiser/Company acknowledges that it may be limited in its ability to make further modifications to its Ads after they have been delivered to On The Move Marketing. The acceptance of an Ad does not constitute approval or endorsement of the Ad by On The Move Marketing or by the Publisher, for purposes of this Agreement or otherwise.
On The Move Marketing shall not be liable for typographical errors, incorrect insertions or omissions in the published Ad or in the failure to publish an Ad (“Error”), except as expressly provided in the next sentence. In the event of an Error, On The Move Marketing will, in its sole discretion, either: (A) refund any applicable amounts paid in advance, provided that, such an Error is not the fault of the Advertiser/Company or (B) correct the Error at no additional cost to Advertiser/Company, provided that, such an Error is not the fault of the Advertiser/Company. The foregoing shall be the Advertiser’s sole right and remedy (and On The Move Marketing’s sole liability) in the event of an Error.
- On The Move Marketing Creative Services. If Advertiser/Company requests that On The Move Marketing create an Ad or provide other creative services (the “Creative Product or Service”), Advertiser/Company is solely responsible for ensuring that the content is complete, accurate, is noninfringing and complies with applicable law, and Advertiser/Company is liable for any and all claims and damages for failure to do so. With respect to an Ad created by On The Move Marketing, as between Advertiser/Company and On The Move Marketing, On The Move Marketing shall retain ownership of the design elements of the Ad, excluding any trade name, trademark, service mark or logo of Advertiser/Company or other proprietary elements of Advertiser/Company that may be included within the Ad, that predate the creation of the Ad. On The Move Marketing hereby grants to Advertiser/Company a revocable, non-transferable, nonexclusive, royaltyfree, worldwide license to use the Creative Product or Service during the Campaign Period.
- Keywords. With respect to On The Move Marketing Search, On The Move Marketing shall have discretion to select the individual words or phrases (“Keywords”) to be used in connection with the Campaign. Advertiser/Company may also request the use of certain Keywords. While On The Move Marketing will use reasonable efforts to use these Keywords, On The Move Marketing makes no guarantees that all such Keywords will be used. To the extent that On The Move Marketing uses Keywords of its choosing, it shall be under no obligation to disclose such Keywords to Advertiser. TO THE EXTENT THAT ADVERTISER/COMPANY
ELECTS TO USE KEYWORDS THAT INCLUDE THE NAMES OF ITS COMPETITOR'S OR TRADEMARKED TERMS (“COMPETITOR KEYWORDS”), ADVERTISER/COMPANY DOES SO AT ITS OWN RISK AND ACKNOWLEDGES AND AGREES THAT IT BEARS ALL LIABILITY ASSOCIATED WITH SUCH ACTION. WITHOUT LIMITING THE FOREGOING, ADVERTISER/COMPANY FURTHER ACKNOWLEDGES THAT ON THE MOVE MARKETING MAY, AT ANY TIME AND IN ITS SOLE DISCRETION, REMOVE COMPETITOR KEYWORDS, BUT WILL NOT HAVE THE OBLIGATION TO DO SO.
During the Campaign Period, Advertiser/Company hereby grants to On The Move Marketing and the Publisher a nonexclusive, royaltyfree, worldwide license to use, copy, modify (as permitted herein), publicly perform, display, broadcast and transmit: (a) any Ad delivered hereunder in accordance with the terms of a PO and this Agreement; and (b) the Existing Site, including, but not limited to, any trademarks, to the extent necessary for On The Move Marketing to perform the Marketing Services contemplated by the PO and this Agreement. Except as otherwise set forth herein or in the PO, title to and ownership of all intellectual property rights of all Ads and associated Advertiser/Company intellectual property shall remain with Advertiser/Company or its third party licensors and upon termination, On The Move Marketing shall promptly return such property to Advertiser/Company. In addition, Advertiser/Company agrees that On The Move Marketing may, during the Campaign Period and thereafter, include Advertiser's/Company’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder to On The Move Marketing’s customer list, and in its marketing materials, sales presentations and the On The Move Marketing Properties.
Advertiser Representations; Warranties and Covenants.
Advertiser/Company is solely responsible for any liability arising out of or relating to the Existing Site, any Ad or any content provided by Advertiser/Company hereunder and any material to which users can link through such Ad including without limitation any third party content contained therein (“Linked Content”). Advertiser represents, warrants and covenants that the Existing Site, the Ads and Linked Content, and any portion thereof, do not and will not: (a) infringe on On The Move Marketing’s or any third party's copyright, patent, trademark, trade secret, moral right or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. Advertiser/Company further represents, warrants and covenants that the product or service that is being (or will be) promoted through the Campaign, including any Ad and Linked Content, is: (x) lawful and (y) not the subject of any ongoing investigation by any local, state or federal regulatory or quasiregulatory authorities.
Advertiser/Company will indemnify, defend and hold harmless On The Move Marketing and the Publisher and their respective subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents and employees and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys' fees and expenses) incurred in connection with any claim, action or proceeding arising from or relating to: (a) any breach by Advertiser/Company of any representation, warranty, covenant or other obligation contained in this Agreement; (b) the violation of any rights of any third party, including intellectual property, privacy, publicity or other proprietary rights by Advertiser/Company or anyone using Advertiser’s/Company’s account; (c) Ads, Advertiser Data, Advertiser’s/Company’s Existing Site(s) and any of Advertiser’s/Company’s terms and conditions and/or privacy policies relating to its Existing Site(s), (d) the sale, license or provision of Advertiser's/Company’s goods or services; (e) Advertiser’s/Company’s use of Competitor Keywords; (f) Advertiser’s use of the Tracking Services, including, without limitation, alleged violations of HIPAA or other federal or state privacy and related laws and regulations; or (g) any willful, intentional or negligent act, omission or misrepresentation by Advertiser/Company. On The Move Marketing reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Advertiser/Company. If On The Move Marketing does assume the defense of such a matter, Advertiser/Company will reasonably cooperate with On The Move Marketing in such defense. Advertiser/Company will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to, or any admission of wrongdoing by, any indemnified person or entity, without On The Move Marketing's prior written consent.
Advertiser/Company represents and warrants that, in the event it is purchasing advertising on behalf of another company, it has been authorized by such company to act as its agent in all respects relating to this Agreement, including, without limitation, the making of any elections or giving of any consents (the “Authorizing Company”). Without limiting the generality of the foregoing, Advertiser/Company agrees on behalf of the Authorizing Company, that the Authorizing Company has been made aware of, and agrees to be bound by, this Agreement and as applicable any relevant third party terms. Advertiser/Company and the Authorizing Company shall be jointly and severally liable for fulfillment of Advertiser’s obligations under this Agreement, including all payment obligations. Prior to the purchasing of any advertising on behalf of the Authorizing Company, Advertiser/Company will provide On The Move Marketing with any elections and/or consents, executed by a duly authorized representative of the Authorizing Company, relating to the advertising.
Except as may be required by applicable law, Advertiser/Company shall not disclose the contents of this Agreement to any third party (other than its employees and representatives who have a need to know and who are made aware of and agree to this restriction) without On The Move Marketing’s prior written consent. Except as otherwise expressly herein permitted, no party may issue a press release concerning the existence or terms of this Agreement without the prior written consent of the other party. “Confidential Information” means information about On The Move Marketing’s (or its suppliers’) business, products, technologies (including the Platform), strategies, financial information, operations or activities that is proprietary and confidential, including, without limitation, all business, financial, technical and any other information which, from all the relevant circumstances, should reasonably be assumed to be confidential and proprietary. Confidential Information will not include information that is: (a) in the possession of Advertiser/Company free of any obligation of confidentiality at the time of its disclosure; (b) or becomes publicly known other than by a breach of this provision; (c) received without restriction from a nonparty free to disclose it; and/or (d) developed independently by Advertiser/Company without reference to the Confidential Information. In addition, information, whether or not Confidential Information, may be disclosed by Advertiser/Company as may be required by applicable law, rule, regulation, or lawful process, provided that, Advertiser/Company, to the extent permitted by applicable law, rule, regulation, or lawful process, first notifies On The Move Marketing in order to permit On The Move Marketing to seek reasonable protective arrangements.
DISCLAIMER OF WARRANTIES.
- ON THE MOVE MARKETING PROVIDES THE ON THE MOVE WEBSITE, THE PLATFORM AND ALL MARKETING SERVICES PERFORMED HEREUNDER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD OR OTHER ADVERTISING PRODUCTS OR SERVICES. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD OR OTHER ADVERTISING PRODUCTS OR SERVICES, ON THE MOVE MARKETING’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. ON THE MOVE MARKETING DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ON THE MOVE MARKETING WILL HAVE NO LIABILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; (ii) CLAIMS RELATING TO BREACH OF INTELLECTUAL PROPERTY LAWS OR DEFAMATION; (iii) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM ADVERTISER’S ACCESS TO OR USE OF THE MARKETING SERVICES;
- UNAUTHORIZED ACCESS TO OR USE OF ON THE MOVE MARKETING’S SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (v) INTERRUPTION OF TRANSMISSION TO OR FROM THE MARKETING SERVICES; (vi) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE MARKETING SERVICES BY ANY THIRD PARTY; (vii) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE MARKETING SERVICES; OR (viii) MATTERS BEYOND ITS OR THEIR REASONABLE CONTROL. ON THE MOVE MARKETING DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME
RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED, OFFERED OR PROVIDED BY A THIRD PARTY ON OR THROUGH THE MARKETING SERVICES OR ANY LINKED WEBSITE.
- NO ADVICE, CONTENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISER/COMPANY FROM ON THE MOVE MARKETING OR ITS AFFILIATES THROUGH THE ON THE MOVE MARKETING WEBSITE, ANY PO AND/OR THE MARKETING SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ON THE MOVE MARKETING MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OR PLACEMENT OF ANY AD OR CAMPAIGN.
- TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ON THE MOVE MARKETING AND ITS AFFILIATES EXPRESSLY DISCLAIMS ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, AT ANY TIME IN THE PAST OR FUTURE, FROM USE OF ANY THIRD PARTY WEBSITE, CONTENT, SERVICE OR PRODUCT.
LIMITATIONS OF LIABILITY.
- NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING EXCLUSION OF LIABILITY WILL NOT APPLY TO (I) ADVERTISER’S/COMPANY’S INDEMNIFICATION OBLIGATIONS, INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION THEREWITH; (II) TO ADVERTISER’S/COMPANY’S CONFIDENTIALITY OBLIGATIONS AND (III) ADVERTISER’S/COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
- LIMITATION ON DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL ON THE MOVE MARKETING’S CUMULATIVE, AGGREGATE LIABILITY TO ADVERTISER/COMPANY OR ANY THIRD PARTY EXCEED THE NET AMOUNTS RECEIVED BY ON THE MOVE MARKETING HEREUNDER DURING THE 12MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. IN LIEU OF REFUND, ON THE MOVE MARKETING SHALL BE PERMITTED, IN ITS SOLE DISCRETION, TO CAUSE THE PLACEMENT OF “MAKEGOOD” ADVERTISING, PROVIDED THAT, SUCH “MAKEGOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
- Prohibition on Certain Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to
Advertiser/Company. To the extent On The Move Marketing may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope, and duration of such warranty and the extent of On The Move Marketing's liability will be the minimum permitted under such law.
- Timing of Claims. Advertiser/Company agrees that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be filed within one year after such claim or cause of action arose or be forever barred, provided that, this section shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.
- Acknowledgement. Each party acknowledges that the other party has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
Third Party Beneficiaries.
- Advertiser acknowledges and agrees that the Publisher is an intended third party beneficiary
Arbitration and Class Action Waiver
- Any dispute, controversy or claim arising out of or relating to this Agreement shall be submitted to final and binding arbitration before JAMS to be held in San Diego County, California, before a single arbitrator, in accordance with the then-current JAMS comprehensives arbitration rules and procedures and the Federal Arbitration Act.
- The parties agree to arbitrate or litigate solely on an individual basis, and that this Agreement does not permit class arbitration or litigation or any claims brought as a plaintiff or class member in any class or representative arbitration or litigation proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force.
- Governing Law/Venue. This Agreement will be governed and construed in accordance with the laws of the State of California without giving effect to conflict of law rules or principles. In the event that a dispute arises with respect to the terms of this Agreement, Advertiser/Company agrees that, in the event the arbitration agreement provided in this Agreement is unenforceable, the exclusive and sole venue for the resolution of any dispute shall be a court of competent jurisdiction in San Diego County, California and further agrees to submit to the jurisdiction of the same.
- Entire Agreement/Amendment. This Agreement (which includes the PO and any payment authorization forms) sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof.
- Notices. Any written notices to On The Move Marketing required under this Agreement shall be provided by registered mail with proof of delivery or by overnight courier, signature required, to On The Move Marketing’s then current corporate headquarters address.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
- Assignment. Advertiser may not assign this Agreement without the prior written consent of On The Move Marketing. On The Move Marketing may assign this Agreement in whole or in part to any affiliate or to a party that acquires all or substantially all of the assets or business to which this Agreement relates. The parties' rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns.
- Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.
- Force Majeure. Neither party shall have any liability for any failure or delay (other than with respect to payment obligations) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal,