Featured Listings Service Agreement Standard Terms and Conditions
This Terms of Use was last updated on May 18, 2011.
NOTICE: You must be 18 years of age or older to accept or enter into these Terms and Conditions.
THIS IS A LEGALLY BINDING AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. YOUR USE OF THE FEATURED LISTING SERVICE IS CONTINGENT UPON YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU DO NOT HAVE PERMISSION TO USE THE FEATURED LISTINGS SERVICE.
1Acknowledgement and Acceptance of Agreement.
This Featured Listings Service Agreement (along with all other applicable terms and conditions, including, without limitation, the Business.com Terms of Use, the Code of Conduct and the Editorial Guidelines, which are hereby incorporated by reference in this "Agreement") is made and entered into by Business.com Media, Inc., a Delaware corporation with offices located at 420 Stevens Ave., Suite 100, Solana Beach, CA 92075 ("Business.com") and the business entity identified by you when registering and accepting this Agreement (the "Advertiser" or "you") by clicking on an "I Accept" button or similar button or link, where such action is identified as having the effect of accepting this Agreement. You acknowledge, represent and warrant that you are authorized to enter into this Agreement on behalf of the Advertiser, that your Acceptance of this Agreement has the effect of making the Advertiser a party bound to this Agreement, and that the information submitted by you to Business.com, via online forms or otherwise, is and will continue to be authentic and correct.
Pursuant to this Agreement, Advertiser submits "Featured Listing(s)" for inclusion on Business.com's web site and on the web sites or other services of Business.com's network partners.
2 Notification and Effectiveness of Changes.
Business.com may, at any time in its sole discretion, change this Agreement, including the fees charged for the Featured Listings Services. Whenever Business.com changes this Agreement, it will post those changes to its Web Site and will update the "Last Updated" date at the top of this Agreement. Advertiser agrees to be bound to any changes to this Agreement when Advertiser uses the services seven (7) or more days after any such modification is posted. It is therefore important that Advertiser reviews this Agreement regularly to ensure Advertiser is updated as to any changes.
3 Term and Termination.
Termination by Business.com: Business.com may, at any time in its sole discretion, with or without cause, terminate this Agreement and/or cancel any listings submitted under this Agreement. Business.com will attempt to notify Advertiser of such cancellation, termination, suspension or restriction through email, phone or another method chosen by Business.com, but Business.com shall not be responsible for failure or delay in providing you with a notice of termination.
Auto-Renewal: Advertiser's subscription to the Featured Listings service will be automatically renewed for successive one-year terms, unless Advertiser notifies Business.com by sending an email with the words "CANCELLATION" in the subject line to Advertiser's account manager with a copy to: sales@business.com. Advertiser shall deliver such notice at least thirty (30) days prior to the commencement of the next renewal term. If Business.com is unable to process Advertiser's credit card payment because the credit card has expired or is otherwise invalid, then Business.com may contact Advertiser to obtain payment information and/or cancel Advertiser's subscription.
Termination by Advertiser: Advertiser may cancel any Featured Listing and/or terminate this Agreement by sending an email with the words "CANCELLATION" in the subject line to Advertiser's account manager with a copy to: sales@business.com. Once cancellation request has been processed, Advertiser's listing(s) will be cancelled on the Business.com site and on Business.com's network partner sites. A cancelled Featured Listing may continue to run on network partner sites for a limited period of time, and Advertiser will be charged for Clicks (as defined below) from a cancelled listing for up to two (2) business days after the listing is cancelled. For purposes of this Section 3, a "business day" is any day other than a Saturday, Sunday or holiday on which the government of the State of California is closed. Advertisers that terminate this Agreement or cancel or revise listings will not receive any refund, and Business.com shall have no obligations with regard to canceled or revised listings.
4 Service Fees and Payment Terms.
Fees: Advertiser agrees to pay all applicable charges under this Agreement, including any applicable taxes or charges imposed by any government entity. If Advertiser disputes any charge made under this Agreement, Advertiser must notify Business.com by sending a detailed notice of dispute to Business.com via email at: billing@business.com within ten (10) days of the charge; failure to so notify Business.com shall result in the waiver by Advertiser of any claim relating to any such disputed charge. Charges shall be calculated solely based on records maintained by Business.com. No other measurements or statistics of any kind shall be accepted by Business.com or have any effect under this Agreement. All payments made under this Agreement are non-refundable.
Late Payments: Any charges which are past due by more than thirty (30) days shall bear interest at the rate of one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, and Advertiser shall reimburse Business.com for any costs and fees (including attorneys' fees) incurred by Business.com in an effort to collect any amount due hereunder.
Disputes: If Advertiser has any questions or objections regarding charges to its credit card, it must promptly (within 30 days) notify Business.com in writing (including electronic mail) and make a reasonable and good faith effort to resolve its objection before it disputes the charge with the credit card processing company. Such notice must identify the amount in dispute and must provide in reasonable detail the basis for disagreement with any charges. If (a) Advertiser fails to comply with these requirements BEFORE filing a dispute with the credit card processing company, or (b) advertiser files a dispute with the credit card processing company that is not in good faith, Advertiser will be in material breach of this Agreement and Business.com will be entitled to liquidated damages calculated as follows in addition to any equitable remedies available to it: $10,000, plus all fees accrued up to the termination of this Agreement, plus attorney fees and costs, plus late fees on the foregoing at the legal rate of interest. Advertiser acknowledges that actual damages for Business.com in the event of such a default would be extremely difficult or impractical to determine, and that the foregoing constitutes a reasonable estimate of Business.com's damages. For purposes of this paragraph, disputing payment because of inability to pay or because of Advertiser's failure to submit a proper notice of non-renewal by the applicable date shall not be considered to be a good faith dispute.
Payment Options: To maintain a Featured Listing account with Business.com, Advertiser must maintain a valid Visa, MasterCard or American Express credit card number on file with us and Advertiser hereby authorizes all fees hereunder to be charged to such credit card; provided, however, that a credit card number is not required where Advertiser has applied for and received approval from Business.com for payment by invoice. Advertiser agrees to notify Business.com in writing (including electronic mail toby no later than three calendar days of any change to any credit card and/or billing information. If a charge is disapproved by the financial institution, Business.com will notify Advertiser via email, and Advertiser must immediately cure the disapproval. If the disapproval is not cured within seven days after Business.com's notice, Business.com reserves the right to charge an administrative fee in the amount of $50 and to pursue any other available remedy. Advertiser is solely responsible for any charges or expenses imposed by the financial institution (e.g. for overdrawn accounts, exceeding credit limits, etc.) resulting from charges billed by Businsss.com.
Billing Cycle: The billing cycle for a Business.com Advertiser is from the 1st day of the month through the last day of the month. Advertiser will be responsible for the balance due on the account from the prior billing cycle. The balance due on the account is determined by taking the previous month's total monthly billable amount as described in Section 5 of this Agreement and reducing it by the amounts paid within the billing cycle. The billing cycle for this Agreement shall be the calendar month. Advertiser's credit card provided in the registration process will be charged every month, on or around the 1st of the month, for the balance due on the account from the prior billing cycle. The balance due on the account is determined by taking the previous month's total monthly billable amount as described in Section 5 of this Agreement and reducing it by the amounts paid within the billing cycle. Advertiser's credit card may also be charged sooner if the account has been issued a credit limit, and reaches the established credit limit prior to the end of the billing cycle.
5 Price Per Click (PPC) Advertising.
Featured Listings are sold on a price per click (PPC) basis, where PPC means the cost to be paid by Advertiser to Business.com per Click, as defined below. Advertiser will be billed on a monthly basis for the cost of all of Advertiser's Clicks up to the monthly or campaign budget the Advertiser selects for its account (if any). The formula for quantifying this monthly amount is:
(Number of Clicks) x (price per click (PPC)) = Total Monthly Billable Amount. The PPC will be specified in the Account Management Center when you log in to the Business.com web site or delivered via email by the Advertiser's Account Manager. The "Number of Clicks" is defined as the total number of clicks from Advertiser's Featured Listings on the Business.com site or on its network partner sites as determined by Business.com in its sole discretion.
Business.com employs a robust click filtering system in an attempt to count only human-generated clicks which are delivered to Advertiser's Featured Listings. Although Advertiser's sites may receive Clicks from non-human clicks that may occur, Business.com, via its filtering system, makes a good faith effort to categorize such Clicks as "non-billable" and not to charge Advertiser for such Clicks. No other measurements or statistics of any kind, from any source, shall be accepted by Businness.com or have any effect under this Agreement. Advertiser acknowledges that Business.com does not guarantee the performance of the Clicks from the Business.com site or its network partner sites. Such Clicks may not result in leads, conversions or customers or otherwise generate sales for the Advertiser. Advertiser is responsible for payment of all Clicks billed by Business.com regardless of the level of conversions or sales generated on Advertiser's website by those Clicks.
Advertiser may log in to the Account Management Center to access click reports. Business.com does not guarantee that its Account Management Center will be available at all times. If Advertiser has any questions or objections regarding the charges applied, Advertiser must notify Business.com within ten (10) days by sending a notice via email to: failure to so notify Business.com shall result in the waiver by Advertiser of any claim relating to any such disputed charge.
6 Editorial Standards and Requirements.
Advertiser's Featured Listings are written by Business.com, or written by Advertiser subject to Business.com's prior written approval. Advertiser agrees to be bound by and to comply with Business.com editorial standards as described in Business.com's Editorial Guidelines. Advertiser's submissions to the Business.com site or network partner sites will be subject to Business.com editorial review, modification and/or removal in Business.com's sole discretion. Advertiser acknowledges and agrees that Business.com retains complete editorial discretion with respect to all listings and links, including, without limitation, with respect to the selection, title, descriptions and multilinks. Furthermore, Business.com retains complete discretion over the categories, web pages, network partners, and other placements with which Advertiser's Listings shall appear. Business.com reserves the right, but not the obligation, to review and change Advertiser submissions at anytime with or without notice. Business.com will attempt to notify Advertiser of any material changes described above.
ADVERTISER REPRESENTS AND WARRANTS THAT ITS LISTINGS AND SUBMISSIONS TO THE BUSINESS.COM SITE AND NETWORK PARTNER SITES DO NOT, AND WILL NOT INCLUDE CONTENT, OR LINKS TO CONTENT, WHICH MAY (I) RESULT IN A CLAIM AGAINST, OR CIVIL OR CRIMINAL LIABILITY TO, BUSINESS.COM OR ITS AFFILIATE(S) OR PARTNER(S); (II) THAT VIOLATES APPLICABLE LAW OR THE TERMS OF THIS AGREEMENT (INCLUDING THE EDITORIAL GUIDELINES), (III) THAT IS FRAUDULENT, DECEPTIVE, LIBELOUS, DEFAMATORY, OBSCENE, PORNOGRAPHIC, ADULT-THEMED, INFRINGING AND/OR (IV) THAT VIOLATES THE PRIVACY, PUBLICITY OR ANY OTHER RIGHT(S) OF A THIRD PARTY.
ADVERTISER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS BUSINESS.COM AND ITS AFFILIATES AND PARTNERS, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, SHAREHOLDERS, AGENTS, LICENSEES AND EMPLOYEES, FROM AND AGAINST ALL THIRD PARTY CLAIMS, ACTIONS, LIABILITIES, LOSSES, EXPENSES, DAMAGES, AND COSTS INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES (COLLECTIVELY, "LOSSES") THAT MAY AT ANY TIME BE INCURRED AS A RESULT OF ANY THIRD PARTY CLAIMS, SUITS OR PROCEEDINGS: (A) ARISING OUT OF ANY BREACH BY ADVERTISER OF ANY DUTY, REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT; (B) ARISING FROM THE CONTENT OR SUBJECT MATTER OF ANY ADVERTISER LISTING, LINK, SUBMISSION OR CONTENT OF SITES TO WHICH VISITORS CAN LINK THROUGH ADVERTISER'S LINKS OR LISTINGS; AND/OR (C) ANY VIOLATION OF THE PROVISIONS OF THIS AGREEMENT CONCERNING PRIVACY.
7 Security.
Business.com endeavors to protect the security of Advertiser's payment information during transmission by using Secure Sockets Layer ("SSL") when receiving payment information through the Business.com website. It is important for Advertiser to protect against unauthorized access to your password and your computer. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and Advertiser agrees to accept full responsibility for all activities conducted using Advertiser's account on Business.com.
8 License.
Advertiser hereby grants to Business.com a worldwide, limited, non-exclusive, non-transferable, royalty-free license to: (i) reproduce, distribute, transmit, display, perform, download, cache, store on its servers, and otherwise use Advertiser's listings and submissions, and any portion thereof, including, without limitation, the trademarks, trade names, service marks and logos set forth therein, or as otherwise specified in writing by Advertiser (collectively the "Advertiser Marks"), for purposes of providing the services covered by this Agreement; and (ii) incorporate in Business.com's and its network partners' sites links and content provided by Advertiser as part of its listings and submissions.
9 Warranty Disclaimer.
NEITHER BUSINESS.COM NOR ITS SUPPLIERS OR VENDORS MAKE ANY WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE. BUSINESS.COM'S OBLIGATIONS UNDER THIS AGREEMENT ARE SUBJECT TO DELAYS CAUSED BY WAR, TERRORISM, ACT OF GOD, EMBARGOES, OR ANY OTHER CIRCUMSTANCES BEYOND BUSINESS.COM'S REASONABLE CONTROL. ADVERTISER ACKNOWLEDGES THAT BUSINESS.COM'S SITE IS OPERATED ON AN "AS IS", "AS AVAILABLE" BASIS, AND THAT NEITHER BUSINESS.COM NOR ITS SUPPLIERS OR VENDORS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER REGARDING THE PLACEMENT OF LISTINGS OR LINKS OR THE PERFORMANCE OR SECURITY OF ITS WEB SITE OR SERVICES.
10 Limitation of Liability.
IN NO EVENT SHALL BUSINESS.COM AND/OR ANY OF ITS SUPPLIERS, VENDORS OR AFFILIATES BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST OPPORTUNITIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND REGARDLESS OF THE CAUSE OF ACTION UPON WHICH ANY SUCH CLAIM IS BASED. IN NO EVENT SHALL BUSINESS.COM'S LIABILITY FOR ANY REASON WHATSOEVER EXCEED THE FEES PAID TO BUSINESS.COM BY ADVERTISER UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD PRIOR TO THE TIME THE APPLICABLE CLAIM ACCRUED. IF ADVERTISER HAS ANY CLAIM UNDER THIS AGREEMENT, ADVERTISER SHALL BE REQUIRED TO BRING SUCH CLAIM WITHIN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CAUSE OF ACTION AROSE.
11 Privacy.
In no event shall Advertiser collect, or cause or permit the collection of, any Personal Information (as defined below) from users of Business.com's site or that of its network partner sites while such users are browsing or viewing Business.com's or its network partners' sites, or place any file or code, including cookies, on the personal computers of users of Business.com's or its network partners' sites while such users are browsing or viewing Business.com's or its network partners' sites. Business.com's privacy policies shall apply to users of Business.com's Web Site while users are browsing or viewing Business.com's site, and Advertiser shall comply with same. Business.com shall own all information relating to user access to Business.com's site, including, but not limited to, all Personal Information, demographics and usage information gathered therefrom. "Personal Information" includes an individual's name, address, e-mail address, age, date of birth, credit card or other financial information, or any other contact or personal information about an individual or from which the personal information about an individual can be derived.
12 Reservation of Rights.
Advertiser agrees that Business.com retains all right, title and interest in and to Business.com's technology, services and other intellectual property rights. Advertiser agrees that it will not reproduce, distribute, alter, modify, copy, edit, format, create derivative works of or otherwise use any materials, content or technology provided by Business.com, except as explicitly provided herein or approved in advance in writing by Business.com.
13 Miscellaneous.
Receipt times of all submissions, notices and other correspondences and transactions via the Business.com site are measured based on receipt by Business.com's servers. This Agreement: (a) shall be governed by and construed in accordance with, the laws of the State of California, without giving effect to principles of conflicts of law; (b) constitutes the complete and entire expression of the agreement between the parties with respect to the subject matter hereof; and (c) shall supersede any and all other agreements, whether written or oral, between the parties, including, without limitation, any print, online and electronic promotional materials. All waivers hereunder by Business.com must be expressly made in writing. Should any provision of this contract be held to be void, invalid, or inoperative, such provision shall be modified to reflect the fullest enforceable intent of the parties, or if such modification is not possible, severed, and the remaining provisions of this contract shall not be affected and shall continue in full force and effect. Exclusive venue for all disputes arising out of or related to this Agreement shall be the state and federal courts located in Los Angeles County, California, and each party hereby irrevocably consents thereto. Any rights or obligations hereunder may not be transferred or assigned by Advertiser without the prior written consent of Business.com. Business.com may freely assign and delegate the Agreement and any of its rights and obligations hereunder.
