AdverCalls Inc. PPC Advertiser Agreement
Updated January 2, 2011
1. These Terms of Service are a binding legal agreement (“Agreement”) between you (“Advertiser”) and AdverCalls Inc. (“AdverCalls”). The terms and conditions herein govern your access and use of AdverCalls services (individually and collectively “Services”) and are as follows:
2. The definitions herein, in their singular and plural forms, as applicable, shall apply to this Agreement (see bottom of this document for additional list of Definitions).
3. The pay per click services may include any or all of the following:
- Strategic planning and setting of objectives
- Keyword research. Ongoing positive and negative keyword maintenance.
- Campaign structure and design
- Ad development: strategy/copywriting.
- Landing page development: strategy/copywriting/graphics/programming/domain name/hosting/lead capture (via webforms, if desired).
- Campaign management: Monitoring, analysis and reporting
- Continuous improvement process: Ongoing testing of ads and landing pages with the objective of increasing the volume of leads and reducing the cost of acquiring each new customer. Typical testing scenario includes 4 different ads and 2 different landing pages at any given time.
4. Fees are $997.00 per month or 18% of the pay per click advertising budget, whichever is greater, plus a one time setup fee of $1997.
5. Client is responsible to pay for all Google Adwords expenditures associated with this Agreement, as well as any offers that are used as incentives in the advertising.
6. Any Tracking Numbers used in the Advertisements remain the property of AdverCalls and client shall pay $10 per month per tracking number in use, plus a per minute fee of $0.075. Minimum term per Number rental is one month. In the event of a termination of Service, the Tracking Number will no longer forward calls to Your phone and You will have no further access to use of the Tracking Number. AdverCalls reserves the right to change or remove the Tracking Number at any time and to reroute it to any party of its choosing.
7. Payment policy: Advertiser shall keep a valid credit card on file with AdverCalls and AdverCalls shall deduct any amounts agreed to at least once each 30 days. In the event that AdverCalls is unable to charge Advertiser’s credit card, or Advertiser does not pay AdverCalls the fees due, AdverCalls may suspend or terminate service. Until outstanding amounts are paid in full, any creative materials, data or assets belonging to Advertiser, which AdverCalls possesses, will be deemed to belong to AdverCalls as partial damages. In addition, AdverCalls may take additional action to collect any outstanding fees through remedies available to it by law.
8. If Advertiser believes any claim or dispute exists with respect to any charges or fees incurred by Advertiser, Advertiser shall notify AdverCalls in writing no more than thirty (30) days following the charge by AdverCalls. Advertiser’s failure to notify AdverCalls of any claim or dispute within such thirty (30) day period shall result in the waiver of any such claim or dispute by Advertiser and such charges or fees shall become final. Upon receipt of notice as described above, AdverCalls will take whatever action, in its sole discretion, it deems appropriate. Refunds (if any) are at the discretion of AdverCalls. If You fail to make payments as set forth herein, You will be responsible for all reasonable expenses (including collection expenses, attorneys’ fees and court costs) incurred by AdverCalls in collecting such payment amounts.
9. Cancellation policy: Advertiser may cancel the service at any time.
10. Advertiser holds AdverCalls and its shareholders, directors, employees, spokespeople and affiliates harmless for any damages, regardless of fault.
11. Advertiser is solely responsible for all Advertisement content.
12. AdverCalls reserves the right, in its sole and absolute discretion, at any time and for any reason or no reason, to suspend or terminate this Agreement or Advertisers access to, or use of the AdverCalls Service with or without prior notice, or modify the terms and conditions which govern Advertisers use of or access to the AdverCalls Service, with or without prior notice. Notwithstanding the foregoing, changes are effective thirty (30) days after notice is provided to Advertiser by an e-mail message sent to the e-mail address listed for Advertiser’s account, or by fax or mail. If service is terminated by AdverCalls, only a prorated amount of any maintenance fees shall be returned to Advertiser.
13. Any suspension, termination or cancellation of this Agreement shall not affect Advertiser’s obligation to pay any amounts due to AdverCalls under these Terms of Service.
14. Advertiser represents and warrants:
a. Advertiser holds all necessary right, title and interest to any information or materials that is supplied for inclusion in Advertiesments.
b. Advertiser will not violate the intellectual property rights, publicity rights or rights of privacy of any third party in connection with use of the AdverCalls Service.
c. Advertiser will not use the AdverCalls Service for any form of illegal conduct or adult entertainment.
15. Advertiser hereby grants AdverCalls, and any third-party which AdverCalls authorizes, the right to use, copy, distribute, display or reference the Advertisements and results data gathered when displaying Advertisements.
16. THE ADVERCALLS SERVICE IS PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND. ADVERCALLS AND ITS SUPPLIERS, AFFILIATES AND PARTNERS (INCLUDING, BUT NOT LIMITED TO ANY THIRD PARTIES PROMOTING YOUR PROFILE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ADVERCALLS SERVICE AND ALL COMMUNICATIONS BETWEEN ADVERTISERS AND CALLERS MADE THROUGH THE ADVERCALLS SERVICE, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, ADVERCALLS AND ITS SUPPLIERS, AFFILIATES AND PARTNERS MAKE NO REPRESENTATION OR WARRANTY THAT THE CONTENT OR OPERATION OF THE ADVERCALLS SERVICE SHALL BE ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTY, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
17. The Advertiser agrees to indemnify, defend and hold AdverCalls, its affiliates, partners, officers, directors, employees, shareholders, representatives, consultants and other agents harmless from and against any losses, costs, damages or expenses (including reasonable attorneys’ fees) resulting from claims or actions arising out of or in connection with Advertiser or Profile or part or derivative thereof, Advertiser’s use of the AdverCalls Service, Advertiser’s communications with Callers and Advertiser’s representations or warranties hereunder, including, without limitation, third party claims for infringement of patent, copyright, trademark or other intellectual property rights and violation of rights of privacy, publicity and property. You further agree that AdverCalls shall have the right, in its sole discretion, to select its own legal counsel to defend AdverCalls from any such claim and that You shall be solely responsible for the payment of all AdverCalls’ reasonable attorneys’ fees incurred in connection therewith. You agree that any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) brought against You, Your company or the entity You represent, or AdverCalls, that is subject to Your indemnification obligations set forth herein, shall be subject to the prior written approval of AdverCalls, in its sole discretion, if such settlement or resolution results in any further obligation or liability for AdverCalls.
18. UNDER NO CIRCUMSTANCES SHALL ADVERCALLS OR ITS SUPPLIERS, AFFILIATES AND PARTNERS (INCLUDING, BUT NOT LIMITED TO ANY THIRD PARTIES PROMOTING THE ADVERTISER) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE ADVERCALLS SERVICE, WHETHER OR NOT THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT ADVERCALLS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADVERCALLS’S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THESE TERMS OF SERVICE SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU UNDER THESE TERMS OF SERVICE IN THE SIX (6) MONTH PERIOD PRIOR TO THE CLAIM GIVING RISE TO LIABILITY. ADVERCALLS SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
19. Advertiser consents to the use of electronic means to complete this Agreement and to provide any notices related to this Agreement. Advertiser also consents to the use of electronic records to store information related to this Agreement and use of the AdverCalls Service. Advertiser may request a copy in paper form of this Agreement and any other records relating to these Terms of Service or Your use of the AdverCalls Service by sending a written request to our mailing address: AdverCalls Inc., 10061 Riverside Dr, Unit 630 Toluca Lake, CA 91602, USA.
20. These Terms of Service may be amended from time to time by AdverCalls with thirty days notification by email, fax or hardcopy delivery to Advertiser.
21. Under no circumstances shall AdverCalls, its parent company, agents, affiliates, suppliers and partners be liable for any delay or failure in performance of the AdverCalls Service resulting directly or indirectly from forces, causes or matters beyond its reasonable control. Performance under this Agreement shall be deemed to take place in the State of Nevada. This Agreement shall be governed by the laws of the State of Nevada, excluding its conflicts of laws principles.
22. Disputes:
- Any disputes arising from this Agreement shall be adjudicated binding arbitration for any claim, dispute, or controversy (”CLAIM”) of any kind (whether in contract, tort or otherwise) arising out of or relating to this purchase, the Service, including but not limited to solicitation issues, disclosure issues, privacy issues, and terms of use issues.
- Arbitration shall be conducted pursuant to the rules of the American Arbitration Association which are in effect on the date a dispute is submitted to the International Centre for Dispute Resolution (ICDR). Information about the International Centre for Dispute Resolution (ICDR). Hearing will take place in the city or county of Los Angeles.
- In no case shall the Advertiser have the right to go to court or have a jury trial. Advertiser will not have the right to engage in pre-trial discovery except as provided in the rules; Advertiser will not have the right to participate as a representative or member of any class of claimants pertaining to any claim subject to arbitration; the arbitrator’s decision will be final and binding with limited rights of appeal.
- The prevailing party shall be reimbursed by the other party for any and all costs associated with the dispute arbitration, including attorney fees, collection fees, investigation fees, travel expenses.
23. Advertiser may not assign this Agreement or any rights or obligations herein, and any attempt to do so is void.
24. Any amendments or modifications by Advertiser must be in writing and signed by AdverCalls to be valid.
25. Unless otherwise agreed to in writing, Advertiser agrees to hold in strictest confidence the results of any Advertisement or details on the Advercalls Service.
26. If any provision is invalid or unenforceable with respect to a party, the remainder of the Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. No waivers shall occur unless in writing. The waiver of any default shall not be a waiver of any subsequent default.
27. Relevant Sections, including terms and conditions of this Agreement which by their express language or by their sense and context survive the termination or cancellation of this Agreement will so survive. This Agreement together with the Terms and Policies constitute the entire agreement between Advertiser and AdverCalls with respect to the subject matter contained herein.
28. Entire agreement. This Agreement (together with the applicable Plan(s)) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Services Agreement and the Plan, the terms and conditions in the Plan will prevail and be controlling, and the terms and conditions in the Services Agreement will prevail and be controlling over terms set forth in Customer’s purchase order (or other similar document). Customer’s purchase order is only effective as its unqualified commitment to access and pay for the Services upon the terms (and only the terms) set forth herein. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
29. Definitions.
“AdverCalls Services” is an information and creative service provided by AdverCalls to Advertisers.
“Advertiser” means the person who registers for the AdverCalls Service. The terms “You” or “Your” or “Advertiser” refers to the legal person or entity creating an account with AdverCalls, including without limitation you, the company or entity which You represent, as indicated during Registration or updated by you at a later date, together with Your employees, agents, representatives or authorized third parties.
“Advertisement” comprises any instance of advertisement, Landing Page or follow-up email.
“Affiliate” means any entity that is displaying or otherwise making the AdverCalls Service available.