Terms and Conditions of Services
These terms and conditions (the “Service Terms”) set forth the terms under which Daily News Digital Solutions (“DNDS”) provides advertisers (“Advertisers”) with digital advertising services (“Services”) described in purchase orders between Advertisers and DNDS (“Orders”). These Service Terms govern all sales of Services to Advertisers. All Orders for Services are subject to the Service Terms, regardless of whether or not the Service Terms are specifically referenced in an Order.
- Services. DNDS, or DNDS’s third-party vendors (each a “Vendor”), will provide the Services identified in Orders submitted by Advertiser from time to time. The Services will be delivered in accordance with any specifications or requirements set forth in the applicable Order and these Service Terms. Upon execution of an Order, DNDS will submit the Order to its Vendor for processing. Subject to DNDS receiving, in a timely fashion, any materials from Advertiser that are required to launch each applicable Service, DNDS 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 DNDS’s Vendor. Advertiser acknowledges that all Services provided hereunder are proprietary to DNDS or its Vendors, and no license, express or implied, is granted to Advertiser under any copyright, trade secret, trademark, trade name, service mark, patent or any other proprietary right, as a result of the provision of the Services to Advertiser (except as provided in the Orders). Advertiser agrees not to use (except as provided in the Orders) or otherwise disclose such information without the prior written consent of DNDS.
- Proofs. Except as set forth herein or in the applicable Order, Advertiser shall not be entitled to receive a proof of any advertising (each an “Ad”) created in connection with any Services ordered under an Order. DNDS makes no representation or warranty that any Ad will not be similar to, or resemble any other Ad that is produced by DNDS. Notwithstanding the foregoing, to the extent an Order contemplates the development of an Advanced Website or Custom Website, Advertiser will have the opportunity to review and approve such website prior to launch.
- Placement. Positioning of Ads is at DNDS’s discretion. DNDS reserves the right to edit, revise, reject or cancel any Ad(s), space reservation or position commitment at any time. DNDS 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.
- No Guarantees. Advertiser acknowledges that DNDS has not made and does not make any guarantees with respect to usage statistics or levels of impression, or results that will be delivered with respect to any Services purchased by Advertiser. If DNDS provides Advertiser with any estimated usage, impression statistics and/or results, it does so only as a courtesy to Advertiser and will not be held liable for any claims relating thereto. DNDS may reject any link embedded in any Ad. If, for any reason, DNDS, in its sole discretion, is unable to publish any Ad(s) in accordance with the terms of these Service Terms or the applicable Order, DNDS will either (a) refund to Advertiser the amounts paid for such Ad(s) not published; (b) publish the Ad(s) at a later date, as reasonably determined by DNDS; or (c) publish the Ads in a different position, as determined by DNDS in its sole discretion.
- License. Advertiser grants DNDS a worldwide, non-exclusive, royalty-free license (with the right to sublicense to a Vendor that requires such rights to perform Services ordered under an Order) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute any and all drawings, names (including, but not limited to, any domain name), logos, trademarks, service marks, designs, pictures, slogans, text, audio, video or other content furnished by Advertiser under the applicable Order (“Advertiser Materials”) in the media and via the distribution methods expressly contemplated in the applicable Order and for no other purpose. DNDS may modify or adapt the format of 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 conform and adapt Advertiser Materials to any requirements or limitations of any networks, devices, services or media.
- Delivery of Advertiser Materials. Advertiser will, at its expense, provide all Advertiser Materials necessary for DNDS and/or its Vendor to provide the Services. Such Advertiser Materials will be provided in accordance with DNDS’s policies in effect from time to time, including, without limitation, policies regarding the manner of transmission to DNDS and the delivery time prior to publication of the Advertiser Materials. Advertiser acknowledges that Advertiser’s delay in delivering materials to DNDS 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 DNDS of advertising material or other web page content of Advertiser and any cost for return of such materials from DNDS will be paid by Advertiser. DNDS may dispose of any such materials delivered to it unless Advertiser has made acceptable prepaid return arrangements. DNDS 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 DNDS in the proper form, in a timely manner, or in an acceptable technical quality for display within the applicable DNDS locations. DNDS will not be liable for typographical errors, incorrect insertions or omissions in any Advertiser Materials displayed in connection with the Services.
- Amendments. Requests to DNDS for amendments to Services may be subject to additional charges as specified by DNDS. As allowed by the DNDS platform, certain Services may be amended directly by Advertiser.
- Payments. The fees for the Services are set forth in the Order. Fees must be paid on a monthly basis in advance. Fees will be charged to the credit card identified in the Order unless Advertiser has made other arrangements with DNDS (provided that DNDS 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 an Order, Advertiser hereby authorizes DNDS to charge Advertiser’s credit card for all applicable Services after DNDS’s initial receipt of the Order, and on a monthly basis 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 of 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 DNDS on demand for all reasonable costs and expenses incurred by DNDS in collecting any unpaid amounts (including, but not limited to, all fees and disbursements of counsel) and/or any collection agency of DNDS. Any sales, use or other tax imposed by any governmental authority on any amount payable by Advertiser in connection with any Order shall be payable by Advertiser to DNDS upon demand.
- Vendor Terms & Conditions. Advertiser acknowledges that Advertiser’s use of certain Services that are furnished by DNDS’s Vendors are subject to the terms and conditions as required by such Vendors (as such terms may be updated from time to time, “Vendor Terms”). By agreeing to these Service Terms, Advertiser acknowledges that it has read the relevant Vendor Terms and explicitly agrees to the Vendor Terms of those DNDS Vendors who will be utilized to fulfill such Advertiser’s Orders. To the extent that there is any inconsistency between these Service Terms and any current or future modifications to any Vendor Terms that may occur from time to time, the former shall control. DNDS reserves the right to utilize, not utilize, or replace any specific Vendor in its sole judgment.
- Termination. DNDS may, in its sole discretion, terminate any Order or suspend the Services without liability in the event (a) Advertiser fails to pay any amount owed hereunder when due and fails to cure such non-payment within five (5) days following the due date or (b) Advertiser violates any Order or these Service Terms. In addition to and without limiting the foregoing, DNDS may terminate any Order or Service at any time, with or without cause, upon ten (10) days prior written notice to Advertiser. Outstanding Orders 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 an Order in the event of a material breach by DNDS of such Order that remains uncured for a period of thirty (30) days following DNDS’s receipt of written notice of such breach from Advertiser. Except as set forth in the immediately preceding sentence, Advertiser has no right to terminate any Order or Service. Notwithstanding the foregoing, the event Advertiser terminates any Order or Service other than as permitted herein, or if DNDS terminates an Order or Service in accordance with the first sentence of this Section 11, without limiting DNDS’s other rights and remedies at law or in equity, DNDS shall have the right to charge Advertiser, and Advertiser will pay DNDS, as liquidated damages, and not as a penalty, an amount equal to 50% of the fee for the remainder of the contracted term for any terminated Order and Service (“Liquidated Damages”). Advertiser authorizes DNDS to charge any Liquidated Damages to Advertiser’s credit card on file with DNDS. In the event a valid credit card is not on file with DNDS, Advertiser will remit payment for Liquidated Damages within five business days of the date of invoice.
- Reservation of Rights. DNDS shall have the right (but not the obligation), in its sole discretion, at any time and for any reason, with or without notice, to modify, postpone, remove or refuse to publish any Advertiser Materials through the Services. Without limiting the foregoing, DNDS reserves the right to remove, access, read, preserve, and disclose any Advertiser Materials or other information as DNDS reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce the Service Terms, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of DNDS, its users and the public. If DNDS removes or rejects any Advertiser Materials, Advertiser’s sole recourse will be to receive a refund for Services that have not been provided.
- Indemnification. Advertiser will indemnify, defend and hold harmless DNDS, each Vendor, and their respective parents, affiliates, successors and assigns, and all of their respective officers, directors, employees and agents from and against any and all claims, losses, demands, causes of action, debts or liabilities, including reasonable attorneys’ fees and expenses arising out of or relating to any claim based on (a) an allegation that any Advertiser Materials or advertisements, software or creative materials developed or provided by Advertiser is libelous or defamatory or violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret or intellectual property or proprietary rights of a third party, or any rights of privacy or publicity, (b) any breach or alleged breach by Advertiser of any of its representations, warranties or covenants set forth in these Service Terms and/or (c) Advertiser’s products, services, and/or any use of the Services.
- Liability Limitations.(a) Advertiser acknowledges that (i) DNDS processes many orders for services, and (ii) despite DNDS’s reasonable efforts, inevitably publishing errors may from time to time occur, and (iii) the prices charged by DNDS assume the enforceability of the limitations on liability provisions set forth in this Section and that such limitations are a reasonable allocation of the risk of any publishing error occurring between Advertiser and DNDS.(b) No error in any Service by DNDS shall affect the obligation of Advertiser to pay the full amount for such Service provided hereunder. The only obligation of DNDS with respect to any error in a Service is to correct such error, if deemed possible, within the reasonable discretion of DNDS, after written notice of such error is received by DNDS from Advertiser. Notwithstanding the foregoing, DNDS will make best efforts to resolve any errors reported by Advertiser within 72 hours after DNDS has received notice of such error.(c) DNDS shall have no liability to Advertiser with respect to any error in, or otherwise with respect to, any Service published without charge to Advertiser and for which a specific charge is not allocated on the applicable Order. DNDS shall also have no liability to Advertiser with respect to any delay in the Services that result from delays in the delivery of any information necessary to complete an Order, or delays caused by Advertiser’s other service providers.(d) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DNDS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND VENDORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOOD-WILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF ADVERTISER TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, BREACH OF CONTRACT, TORT, NEGLIGENCE (GROSS OR OTHERWISE) OR ANY OTHER TORTIOUS ACTION BY DNDS, WHETHER OR NOT DNDS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIABILITY OF DNDS ARISING PURSUANT TO ANY ORDER, IF ANY, SHALL NOT EXCEED THE LESSER OF (I) ANY DIRECT DAMAGES ACTUALLY INCURRED BY ADVERTISER AND (II) THE AMOUNT PAID OVER A THREE MONTH PERIOD BY ADVERTISER PURSUANT TO THE PURCHASER ORDER WITH RESPECT TO THE SERVICES GIVING RISE TO SUCH LIABILITY. THE SERVICES ARE PERFORMED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND DEFECTS CONTAINED THEREIN. DNDS DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO THE RESULTS TO BE OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FORGOING, DNDS DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE. DNDS MAKES NO WARRANTY AND DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY AND RELIABILITY OF THE SERVICE OR ANY CONTENT. DNDS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY HARM TO COMPUTER SYSTEMS, LOSS OF DATA OR OTHER HARM RESULTING FROM USE OF THE SERVICES OR ANY CONTENT. DNDS HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OF, MODIFICATION OF, OR THE FAILURE TO STORE OR TRANSMIT ANY CONTENT OR OTHER COMMUNICATIONS MAINTAINED BY THE SERVICES. DNDS MAKES NO WARRANTY THAT THE SERVICES WILL MEET REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE AND ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DNDS, ITS EMPLOYEES OR REPRESENTATIVES, OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE SERVICE TERMS.
- Force Majeure. Any delay in or failure of performance by DNDS will not be considered a breach of the Order or these Service Terms and will be excused to the extent caused by any occurrence beyond the reasonable control of DNDS, including, but not limited to, public emergency or necessity, restrictions imposed by law, acts of God, war, riot, strikes, power outages, failures of the Internet, or delays caused by Advertiser’s other service providers.
- Third-Party Beneficiaries. Each Vendor shall be a third-party beneficiary of all provisions of these Service Terms related to Vendors. Vendors may at any time enforce such provisions in their own right.
- Modifications to Orders and Terms. DNDS reserves the right to amend or revise the terms of any Order and/or these Service Terms (including, without limitation, pricing terms) at any time upon thirty (30) days written notice to Advertiser. If such amendments or revisions are to material terms of an Order and are not acceptable to Advertiser, Advertiser may cancel the affected Order without penalty or liability, effective as of the effective date of such amendment or revision, by providing written notice to DNDS within such thirty (30) day period.
- Miscellaneous. Each Order (a) shall be governed by, and interpreted in accordance with, the laws of the state of New York, without regard to principles of conflicts of law, (b) together with these Service Terms and the Vendor Terms, constitutes the entire agreement between DNDS and Advertiser with respect to the subject matter of such Order, (c) supersedes all course of dealing and other conduct previously pursued, and each oral or written agreement and representation previously made, by DNDS with respect to such subject matter, (d) shall be binding upon and inure to the benefit of DNDS and Advertiser, and the successors and assignees of DNDS and Advertiser, except that no right or obligation of Advertiser pursuant to this order may be assigned by Advertiser without first obtaining the written consent of DNDS, and (e) Advertiser may grant approvals, permissions and consents by email. The parties are independent contractors. Nothing in these Service Terms shall be construed to create a joint venture, partnership, or an agency relationship between the parties. The failure of DNDS at any time or times to require performance of any provision of these Service Terms shall not affect its right to subsequently enforce the same or any other provision. No failure or delay by DNDS in exercising any right shall operate as a waiver. Any notices to DNDS must be sent to: Daily News Digital Solutions, 4 New York Plaza, 6th Floor, New York, NY 10004, Attn: Digital Solutions Operations Manager, via certified mail or overnight courier, and are deemed given upon receipt. Notice to the Advertiser may be effected by sending email to the email address specified in the Advertiser’s account, or by posting a message to the Advertiser’s account interface, or sending a notice via certified mail or overnight courier and is deemed received when sent (for email) or no more than 15 days after having been posted (for messages in the Advertiser’s interface) or upon receipt (for certified mail or overnight courier). If any provision of these Service Terms 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 these Service Terms will remain in full force and effect. Sections 4, 8, 9, 10, 12, 13, 14, 16, 17 and 18 of these Service Terms, and any other provisions necessary to get effect thereto, will survive any termination, expiration or cancellation of any Order.
DIGITAL ADVERTISING PRODUCT TERMS AND CONDITIONS
- Search Engine Optimization (“SEO”). The following terms will apply to any Order for SEO services: DNDS will perform with the intent of optimizing certain search engine results for Advertiser’s advertisements. SEO does not include paid search engine placements offered by certain search engine companies. Advertiser acknowledges that SEO aims to optimize the search engine results for the SEO URL and Local Search URL’s identified for optimization. SEO is not intended to optimize any other domain name or website. Advertiser acknowledges that DNDS will use reasonable efforts to optimize the ranking of Advertiser’s advertisements through the provision of SEO, but that no guarantee can be made that the Advertiser’s search ranking position will be maintained or optimized. In addition, Advertiser acknowledges that there are risks associated with search engine optimization methods, which could damage Advertiser’s search engine ranking position across search engine companies and agrees that DNDS will have no liability for any other unfavorable ranking results whether as a result of DNDS provided SEO or otherwise. Search engine companies change their ranking algorithms periodically, and as such, search ranking positions will fluctuate and cannot be guaranteed by DNDS. Any other changes to search engine sites that cause unfavorable ranking results are out of DNDS’s control and DNDS cannot be held responsible for such actions or occurrences. The search ranking position for Advertiser shall have no effect on the obligation of Advertiser to pay the fees set forth on the Order relating to the SEO Services purchased by Advertiser. If Advertiser has purchased the Managed Search Engine Optimization product (“SEOM”) the following additional terms apply: DNDS may make updates, changes or enhancements to Advertiser’s websites. Advertiser acknowledges no updates, changes or enhancements to said websites by DNDS, even those that may be deemed by Advertiser and/or DNDS to have been made in error, shall affect the obligation of Advertiser to pay the fees set forth on the Order relating to the SEO Services purchased by Advertiser. Should any change be made in error, the only obligation of DNDS with respect to any such error is to correct such error as soon as practicable after notice of such error is received by DNDS from Advertiser. Under no circumstances will DNDS be responsible or liable, financially or otherwise, for any impact of DNDS initiated changes including errors, other than as stated in the aforementioned sentence.
- Search Engine Marketing (“SEM”). The following terms will apply to any Order for SEM services: Due to the variable results of SEM, product fulfillment may vary from targeted levels by as much as 50% in any given month of the term of the applicable Order. In order to compensate for this variance or for any other reason, DNDS may, in its sole discretion, adjust the campaign fulfillment duration of the applicable Order to match delivered fulfillment levels on a monthly basis. Adjustment of campaign duration shall not affect the obligation of Advertiser to pay the fees set forth on the Order relating to the Services purchased by Advertiser; provided that in no event will Advertiser be obligated to pay more than the fees relating to the applicable Order if DNDS extends the duration of the campaign as set forth above. In the event that DNDS performs any SEM pursuant to the Services performed hereunder and there is a credit to Advertiser’s account of less than $10.00 after such SEM has been performed, DNDS shall not be required to perform any SEM to offset such balance or to refund Advertiser the cash equivalent thereof. With Specific Regard to Google Products: Sales of Google AdWords inventory through DNDS will include a management fee. Advertiser’s use of Google AdWords must comply with Google’s Brand guidelines. Advertiser acknowledges that Google may audit data and records of Advertisers that have purchased Google product through DNDS and its Vendors, and DNDS and its Vendors and will provide reasonable support as necessary upon request from Google.
- Social Media Management (“SMM”). The following terms will apply to any Order for SMM services: DNDS will provide the Services on third-party social networking sites on Advertiser’s behalf and authorizes DNDS to act on Advertiser’s behalf in communications with social networking sites, and in the distribution of any Advertiser Materials on such sites. Advertiser retains all rights to any Advertiser Materials supplied to DNDS to submit, post or display. Advertiser represents and warrants that all Advertiser Materials submitted in connection with a SMM Order will comply with all Partner Property social networking sites’ terms of service. “Partner Property” social networking sites include but are not limited to:: Facebook – Users –http://www.facebook.com/legal/terms; Pages – http://www.facebook.com/page_guidelines.php; Twitter – https://twitter.com/tos;Foursquare – https://foursquare.com/legal/terms; Google+ – https://accounts.google.com/TOS?hl=en-US; LinkedIn –http://www.linkedin.com/static?key=user_agreement. For clarity, the foregoing URLs associated with the listed Partner Properties are subject to change from time to time by the Partner Properties. If Advertiser has purchased Advanced or Custom SMM the following additional terms shall also apply: Advertiser acknowledges that SMM products do not guarantee attainment of specific performance metric thresholds including but not limited to numbers of “fans”, “likes”, “followers”, leads generated, and so forth. Advertiser and holds DNDS and its Vendors harmless for all claims related to any SMM activities facilitated by DNDS or Vendors to the extent content for such activities is provided by Advertiser, including but not limited to contests and promotions, social conversation creation, feedback management, and so forth. Custom SMM product reporting will not be available through the Advertiser dashboard.
- Reputation Management (“RM”). The following terms will apply to any Order for RM services: DNDS will provide data through a reputation management system that automatically monitors sources, collects and analyzes data, and reports on how Advertiser’s business is perceived by its customers (“StepRep”). DNDS will provide RM in conjunction with its Vendor, VendAsta Technologies Inc. Advertiser acknowledges and agrees that use of the StepRep services is subject to the terms of the terms and conditions located at http://www.steprep.com/terms/, as may be amended from time to time. Advertiser agrees to the foregoing terms and conditions.
- LocalTrack. The following terms will apply to any Order for LocalTrack services: During the term of each applicable Order, Advertiser authorizes DNDS to act on Advertiser’s behalf by creating an advertising effectiveness data gathering system for Advertiser through establishing and maintaining telephone numbers (the “Numbers”) or domain names (the “URLs”) to be used to measure incoming calls and website usage resulting from Advertiser’s advertising campaigns. All costs and expenses of establishing and maintaining the Numbers & URLs are included in the rates set forth on the Order. To reimburse DNDS for such costs and expenses, the Advertiser shall pay monthly all associated charges noted on the Order, subject to the right of DNDS to adjust such fee upon a change in such costs and expenses. Advertiser warrants and represents to DNDS that the destination phone numbers and destination URLs indicated on the LocalTrack Order are the correct primary phone numbers and domain names used by Advertiser in its business. Advertiser acknowledges that DNDS is not responsible for any advertising campaigns not provided by DNDS, even if such campaigns use the Numbers or URLs. Advertiser acknowledges that upon completion of the term of an Order or cancellation at DNDS’s discretion as noted above, the Numbers associated with any Order will no longer be functional as outlined above and that DNDS bears no responsibility related to the cessation of the function of said Numbers or URLs. Upon Advertiser’s request, before disabling any URLs, DNDS will use commercially reasonable efforts to provide Advertiser with the opportunity to purchase each URL. In the event Advertiser purchases URLs hereunder, DNDS will take reasonable steps to transfer the ownership of the URLs as directed by Advertiser. Advertiser acknowledges that any telephone conversation as result of the use of the Numbers may be recorded (“Voice Recording Service”), and that applicable law and the Vendor of the Voice Recording Service may require certain processes to be followed in connection with the use of the Voice Recording Service. Advertiser understands and acknowledges that (a) the Voice Recording Service is intended to make an electronic recording of all telephone calls made to the Numbers for purposes of “quality assurance” and “customer service,” (b) when a person (the “Caller”) makes a call to a Advertiser through a Number, the Caller will be automatically advised using a recorded message that such call may be subject to recording and monitoring (“Call Prompt Message”) prior to the connection of the telephone call to the Advertiser. As a condition of usage, Advertiser expressly agrees and acknowledges that federal, state, and local laws may require that Advertiser provide notice to and/or receive express consent and permission from, in writing or otherwise, all agents (including employees), independent contractors, and /or other persons who are on the receiving end of the recorded telephone calls (the “Call Receivers”). Advertiser will provide and/or obtain all notices, consents and permissions relating to Call Receivers, as required by applicable law. Advertiser may be required from time to time to certify in writing to DNDS and its Vendors, and update this certification on a monthly basis, that all Call Receivers have been notified, have consented and have given permission to have their voice, identity, and call content recorded, monitored, stored, and divulged. Advertiser agrees that DNDS has no responsibility for (i) the legality of recording, monitoring, storing, and/or divulging telephone calls and (ii) the legality of the language used in the recorded Call Prompt Message and content as they pertain to federal, state, and local laws. Advertiser grants specific permission to DNDS and its Vendors to administer, monitor, use and access Advertiser recorded calls as Advertiser’s agent. Advertiser shall defend, indemnify, and hold harmless DNDS, its Vendors, and their respective affiliates, and its agents (including employees) from any and all claims, liabilities, and/or damages (including, but not limited to reasonable attorneys’ fees and costs) that arise from or relate to Advertiser’s use or misuse of the Voice Recording Service. Advertiser shall not use the Voice Recording Service to intimidate, harass, or otherwise violate the privacy or other rights of a Caller and a Call Receiver. If DNDS learns about any alleged misuse of the Voice Recording Service, DNDS reserves the right to terminate the totality of such Advertiser’s use of the Voice Recording Service without prior written notice and without liability.
- Websites, Mobile Sites & E-Commerce. The following terms will apply to any Order for websites and/or mobile sites: DNDS will create and maintain a website or mobile website for Advertiser. The creation of this website or mobile website may require Advertiser to complete implementation. Failure of the Advertiser to complete directed implementation processes shall have no effect on the obligation of Advertiser to pay the fees set forth on the Order relating to the Services purchased by Advertiser. DNDS reserves the right in its sole discretion to refuse to sell and design websites to Advertiser for a site which DNDS deems is unlawful or inappropriate, constitutes harassment, racism, violence, obscenity, harmful intent, spamming, or contains unacceptable adult content, commits a criminal offence, or commits privacy or copyright infringement. If DNDS rejects or refuses to design a website or mobile site pursuant to the preceding sentence, DNDS will refund to Advertiser any amount previously paid to DNDS with respect thereto, other than amounts relating to work performed by DNDS in connection with such website or mobile site through the date of DNDS’s rejection or refusal, or in the alternative, through the point at which Services are no longer provided. Advertiser may use the Services purchased for the creation and maintenance of an interactive online store (“Store”) for the sale of goods and services. Advertiser will be solely responsible for all goods and services offered at and sold through the Store, including any claim, suit, penalty, tax, fine, penalty, or tariff arising and/or any failure to comply with any laws, taxes, and tariffs, from the end user’s exercise of Internet electronic commerce through the website and/or Store. In conjunction with the creation of such a Store, Advertiser may choose to add a bolt-on application which may facilitate financial transactions including payment processing. Advertiser acknowledges the payment processing platform is an application provided by a separate party from DNDS and that DNDS has no liabilities or responsibilities for any interactions between Advertiser and the payment processing platform provider or the transactions that may result from the use of such a platform. It is at the discretion of the Advertiser whether to engage in a relationship with a payment processing platform provider of which DNDS is not a party thereof.
- Email Marketing Advertising. The following terms will apply to any Order for Email Marketing: The Email Marketing Product, and any related offerings and services are referred to in these Service Terms as the “Email Products.” The Email Products are provided in conjunction with Constant Contact, Inc. and Advertiser acknowledges and agrees that its purchase and use of the Email Products will be subject to the additional terms and conditions located at http://search.constantcontact.com/uidocs/CCSiteOwnerAgreement.jsp, as may be amended from time to time. Advertiser is responsible for responding to an email address verification preview email message that will be sent to the address that will be used to generate the email marketing messages. It is the responsibility of Advertiser to contact DNDS with changes prior to the indicated mailing date otherwise the email marketing message will be sent as is.
- Press Release Services. The following terms will apply to any Order for Press Release Services (“PRS”). In the provision of the Service, DNDS or Vendor may, from time to time, contact and interact with Advertiser to obtain content, direction and approval. Inaction by or unavailability of the Advertiser may have a negative impact on the fulfillment or performance of the Service. Advertiser inaction or lack of availability shall not affect the obligation of Advertiser to pay the full amount for Services set forth in the Order. Advertiser is responsible for the content and accuracy of all Advertiser Materials submitted by Advertiser to DNDS or Vendor for distribution via the Service, and neither DNDS nor Vendor(s) are responsible for verifying facts contained in any Advertiser Materials. Advertiser represents and warrants that the Advertiser Materials will not contain any content that is obscene, libelous, slanderous or otherwise defamatory, false or misleading or which violates any copyright, right of privacy or publicity or other right of any person. All Advertiser Material transmitted to DNDS by Advertiser must contain a user-supplied contact name, phone number and e-mail address that may be verified by DNDS or its Vendor. DNDS and Vendors can only remove Advertiser Materials from their networks, and DNDS and Vendors make no representation or warranty regarding the removal of Advertiser Materials from sites outside of DNDS and Vendors’ network. Any inadvertent errors in the dissemination of Advertiser Materials by DNDS and Vendors will be corrected promptly upon discovery, without additional charge, and such obligation to correct shall constitute the sole liability of DNDS and Vendors in this regard. DNDS and Vendors do not warrant specific placement of any news release nor pick up by third parties of any news release on its wire, but will deliver a news release via online distribution methods to make such content available to be repurposed by third parties who discover the content at various Internet locations, both intended and unintended. Except as part of the Service, Advertiser may not (a) resell any text supplied through the Service (including any portion of text); or (b) distribute or transfer, by any means whatsoever, any full article text received via the Service (or copies thereof), to any person, organization or institution. DNDS and Vendors are not responsible for the subject matter, content, or editorial approach of any such information, including news mentions, and hereby disclaim ownership of any information and/or news mentions provided to Advertiser via the Service. Advertiser’s use of any text or graphics provided through the Service, other than in accordance with the terms set forth herein, shall be at Advertiser’s sole risk and expense. Advertiser agrees to comply fully with all relevant laws rules and regulations, including but not limited to the Children’s Online Privacy Protection Act of 1998, laws relating to “spam”, and the export laws and regulations of the United States.
- Premium Video Services. The following terms will apply to any Order for Turn Key Video (“TKV”) or Full Motion Video Services (“FMV” and, together with TKV, “Video”): (A) TKV. The License. Subject to the terms set forth herein, during the period that TKV is ordered pursuant to an Order (the “Period”), Advertiser shall have the exclusive rights to the Core Elements included in the TKV in the DMA covering the area in which the Advertiser business is located (the “Region”) for commercial advertising purposes. Advertiser is not permitted to use the TKV in any other way. Personalization. DNDS and Vendor shall personalize the TKV based on Advertiser Materials, such as logos, pictures, slogans, or information provided by Advertiser. Advertiser hereby grants DNDS and its Vendors a worldwide, perpetual, royalty-free, and sub-licensable license to use the Advertiser Materials provided by Advertiser for purposes of personalizing the TKV. The fee charged for the license includes personalization of the TKV. Rights. A third party (such as a photographer, composer, illustrator, etc.) may retain rights in one or more Core Elements of the Video and will have the right to use, and to grant others the right to use, one or more of the Video’s Core Elements anywhere and at any time, including in the Region and during the Period; and (b) neither DNDS nor its Vendors shall be in breach of the Advertiser exclusivity rights if an Internet user in any location within the Region, via so-called “pull technology,” requests and/or pulls a video from the Internet that is the same or similar to the Video licensed to the Advertiser or to the Core Elements of the Video, and, as such, is able to view such same or substantially video or material in the Region. “Core Elements” means any unique slogan, and independently copyrightable elements (such as the video, animation, and music), that are deemed by Vendor in its sole discretion to be material to creating the unique look and feel of the Video, excluding the Advertiser Materials. (B) FMV. The License. Subject to the terms set forth herein, Advertiser shall have the exclusive, worldwide, perpetual, sub-licensable rights to the FMV. Advertiser Materials. DNDS and Vendor shall produce the FMV from the video and voice recordings filmed or recorded on the Advertiser premises (“Advertiser Footage”) and from Advertiser Materials, such as logos, pictures, videos, slogans, or information provided by the Advertiser. Advertiser hereby grants DNDS and its Vendors a worldwide, perpetual, royalty-free, and sub-licensable license to use the Advertiser Materials provided by Advertiser for purposes of producing Videos for Advertiser. Rights. Subject to the terms set forth herein, Advertiser shall have exclusive rights to use the FMV. Notwithstanding the exclusive nature of the Advertiser license, however, Advertiser shall have only non-exclusive rights to use each Core Element (as defined above) provided by Vendor in connection with the creation of the Video. (C) General Video Terms and Conditions. Intellectual Property Rights. Except for Advertiser Materials and the Advertiser Footage, all copyright and intellectual property rights contained or displayed through the Video will remain Vendor’s sole and exclusive property. No intellectual property rights in the Video will be transferred to Advertiser, other than Advertiser’s right to use and display the Advertiser personalized Video as described herein. Except for any of the Advertiser Materials and the Advertiser Footage, Vendor shall own exclusive rights in any and all derivative works created from the Video. Representations and Warranties. Advertiser represents and warrants that: (i) Advertiser has full rights to use, broadcast and distribute the Advertiser Materials and has documentary substantiation for all the claims made therein, (ii) the Advertiser Materials are truthful and not misrepresentative or misleading and do not plagiarize, libel, defame or harm any party, (iii) Advertiser’s use of the Advertiser Materials and Advertiser Footage contained in the Video will not invade the rights of privacy of any third party or otherwise infringe upon or violate the rights or property interests of any third party, and (iv) Advertiser will not use the Video or any part of the Video except as permitted hereby. Disclaimer And Limited Liability. DNDS, ITS VENDORS, THEIR AFFILIATES AND THEIR RESPECTIVE OFFICERS, AGENTS, PARTNERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, RELATING TO THE VIDEOS. IN NO EVENT WILL DNDS, ITS VENDORS, THEIR AFFILIATES OR THEIR RESPECTIVE OFFICERS, AGENTS, PARTNERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND SUPPLIERS BE LIABLE TO ADVERTISER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES. DAMAGES WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID BY ADVERTISER FOR THE LICENSES OR SERVICES THAT ARE THE BASIS FOR SUCH LIABILITY. Indemnity. Advertiser agrees to indemnify and hold harmless DNDS, its Vendors, their affiliates and their respective officers, agents, partners, directors, shareholders, suppliers, and employees from and against any loss, damages, liabilities, claims, demands, suits, expenses, including reasonable attorneys’ fees, which any such party may incur arising out of or relating to: (i) the Advertiser Materials; (ii) Advertiser’s modification of a Video (to extent that a claim arises as a result of such modification); (iii) Advertiser’s display and use of a Video in violation of the terms of the Video license granted to Advertiser; (iv) claims that the Advertiser products or services are defective, injurious or harmful or violate the rights of any third parties and (v) claims predicated on a breach of these terms by Advertiser.
- Content Development Services. The following terms will apply to any Order for Content Development Services: DNDS will develop content for landing pages, websites, and/or mobile websites (the “CDS Sites”) as set forth in the Order. The content used for the CDS Sites will be derived from the Advertiser Materials provided to DNDS and Vendors by Advertiser; DNDS and Vendors may also utilize available public information and contact Advertiser for purposes of adding content to the CDS Sites. Advertiser agrees to indemnify and hold DNDS and its Vendors harmless for any third party claims related to the Advertiser Materials.
- Third Party Social Media Advertising (“Social Media Campaigns”). The following terms will apply to any Order for Social Media Campaigns: DNDS will provide the Services on third-party social networking sites on Advertiser’s behalf and authorizes DNDS to act on Advertiser’s behalf in communications with social networking sites, and in the distribution of any Advertiser Materials on such sites. Advertiser represents and warrants that Advertiser, and all Advertiser Materials submitted in connection with a Social Media Campaign, will comply with all Partner Property social networking sites’ terms of service and advertising guidelines (as described under SMM above).
Last updated 3/13/2015